Tuesday 23 January 2018
Search - Content
Search SEO Glossary
Contact Us

Elliot's Debates - Volume V - Part III- Debates in the Federal Convention



NOTE. —The following paper is copied from a rough draught in the handwriting of Mr. Madison. As it traces the causes and steps which led to the meeting of the Convention of 1787, it seems properly to preface the acts of that body. The paper bears evidence, in the paragraph preceding its conclusion, that it was written at a late period of the life of its author, when the pressure of ill health combined with his great age in preventing a final revision of it.

As the weakness and wants of man naturally lead to an association of individuals under a common authority, whereby each may have the protection of the whole against danger from without, and enjoy in safety within the advantages of social intercourse, and an exchange of the necessaries and comforts of life; in like manner feeble communities, independent of each other, have resorted to a union, less intimate, but with common councils, for the common safety against powerful neighbors, and for the preservation of justice and peace among themselves. Ancient history furnishes examples of these confederate associations, though with a very imperfect account of their structure, and of the attributes and functions of the presiding authority. There are examples of modern date also, some of them still existing, the modifications and transactions of which are sufficiently known.

It remained for the British Colonies, now United States of North America, to add to those examples one of a more interesting character than any of them; which led to a system without an example ancient or modern—a system founded on popular rights, and so combining a federal form with the forms of individual republics, as may enable each to supply the defects of the other and obtain the advantage of both.

Whilst the colonies enjoyed the protection of the parent country, as it was called, against foreign danger, and were secured by its superintending control against conflicts among themselves, they continued independent of each other, under a common, though limited, dependence on the parental authority. When, however, the growth of the offspring in strength and in wealth awakened the jealousy, and tempted the avidity, of the parent into schemes of usurpation and exaction, the obligation was felt by the former of uniting their counsels and efforts, to avert the impending calamity.

As early as the year 1754, indications having been given of a design in the British government to levy contributions on the colonies without their consent, a meeting of colonial deputies took place at Albany, which attempted to introduce a compromising substitute, that might at once satisfy the British requisitions, and save their own rights from violation. The attempt had no other effect than, by bringing these rights into a more conspicuous view, to invigorate the attachment to them, on the one side, and to nourish the haughty and encroaching spirit on the other. 62

In 1774, the progress made by Great Britain in the open assertion of her pretensions, and the apprehended purpose of otherwise maintaining them by legislative enactments and declarations, had been such, that the colonies did not hesitate to assemble, by their deputies, in a formal Congress, authorized to oppose to the British innovations whatever measures might be found best adapted to the occasion; without, however, losing sight of an eventual reconciliation. 63

The dissuasive measures of that Congress being without effect, another Congress was held in 1775, whose pacific efforts to bring about a change in the views of the other party being equally unavailing, and the commencement of actual hostilities having at length put an end to all hope of reconciliation, the Congress, finding, moreover, that the popular voice began to call for an entire and perpetual dissolution of the political ties which had connected them with Great Britain, proceeded, on the memorable Fourth of July, 1776, to declare the thirteen colonies Independent States.

During the discussions of this solemn act, a committee, consisting of a member from each colony, had been appointed, to prepare and digest a form of Confederation for the future management of the common interests, which had hitherto been left to the discretion of Congress, guided by the exigencies of the contest, and by the known intentions or occasional instructions of the colonial legislatures.

It appears that, as early as the 21st of July, 1775, a plan, entitled “Articles of Confederation and perpetual union of the Colonies,” had been sketched by Dr. Franklin—the plan being on that day submitted by him to Congress, and, though not copied into their Journals, remaining on their files in his handwriting. But notwithstanding the term “perpetual” observed in the title, the articles provided expressly for the event of a return of the colonies to a connection with Great Britain. 64

This sketch became a basis for the plan reported by the committee on the 12th of July, now also remaining on the files of Congress in the handwriting of Mr. Dickinson. The plan, though dated after the declaration of independence, was probably drawn up before that event, since the name of colonies, not states, is used throughout the draught. 65 The plan reported was debated and amended from time to time, till the 17th of November, 1777, when it was agreed to by Congress, and proposed to the legislatures of the states, with an explanatory and recommendatory letter. 66 The ratifications of these, by their delegates in Congress, duly authorized, took place at successive dates, but were not completed till the 1st of March, 1781, when Maryland, who had made it a prerequisite that the vacant lands acquired from the British crown should be a common fund, yielded to the persuasion that a final and formal establishment of the federal union and government would make a favorable impression, not only on other foreign nations, but on Great Britain herself. 67

The great difficulty experienced in so framing the federal system as to obtain the unanimity required for its due sanction, may be inferred from the long interval and recurring discussions between the commencement and completion of the work; from the changes made during its progress; from the language of Congress when proposing it to the states, which dwelt on the impracticability of devising a system acceptable to all of them; from the reluctant assent given by some, and the various alterations proposed by others; and by a tardiness in others, again, which produced a special address to them from Congress, enforcing the duty of sacrificing local considerations and favorite opinions to the public safety and the necessary harmony: nor was the assent of some of the states finally yielded without strong protests against particular articles, and a reliance on future amendments removing their objections. It is to be recollected, no doubt, that these delays might be occasioned, in some degree, by an occupation of the public councils, both general and local, with the deliberations and measures essential to a revolutionary struggle; but there must have been a balance for these causes in the obvious motives to hasten the establishment of a regular and efficient government; and in the tendency of the crisis to repress opinions and pretensions which might be inflexible in another state of things.

The principal difficulties which embarrassed the progress, and retarded the completion, of the plan of Confederation, may be traced to—first, the natural repugnance of the parties to a relinquishment of power; secondly, a natural jealousy of its abuse in other hands than their own; thirdly, the rule of suffrage among parties whose inequality in size did not correspond with that of their wealth, or of their military or free population; fourthly, the selection

and definition of the powers, at once necessary to the federal head, and safe to the several members.

To these sources of difficulty, incident to the formation of all such confederacies, were added two others—one of a temporary, the other of a permanent nature. The first was the case of the crown lands, so called because they had been held by the British crown, and, being ungranted to individuals when its authority ceased, were considered by the states within whose charters or asserted limits they lay, as devolving on them: whilst it was contended by the others that, being wrested from the dethroned authority by the equal exertions of all, they resulted of right and in equity to the benefit of all. The lands being of vast extent, and of growing value, were the occasion of much discussion and heart-burning, and proved the most obstinate of the impediments to an earlier consummation of the plan of federal government. The state of Maryland, the last that acceded to it, held out, as already noticed, till the 1st of March, 1781, and then yielded only to the hope that, by giving a stable and authoritative character to the Confederation, a successful termination of the contest might be accelerated. The dispute was happily compromised by successive surrenders of portions of the territory by the states having exclusive claims to it, and acceptances of them by Congress.

The other source of dissatisfaction was the peculiar situation of some of the states, which, having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on. New Jersey, placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and South Carolina, to a patient bleeding at both arms. The articles of Confederation provided no remedy for the complaint, which produced a strong protest on the part of New Jersey, and never ceased to be a source of dissatisfaction and discord, until the new constitution superseded the old.

But the radical infirmity of the “Articles of Confederation” was the dependence of Congress on the voluntary and simultaneous compliance with its requisitions by so many independent communities, each consulting more or less its particular interests and convenience, and distrusting the compliance of the others. Whilst the paper emissions of Congress continued to circulate, they were employed as a sinew of war, like gold and silver. When that ceased to be the case, and the fatal defect of the political system was felt in its alarming force, the war was merely kept alive, and brought to a successful conclusion, by such foreign aids and temporary expedients as could be applied—a hope prevailing with many, and a wish with all, that a state of peace, and the sources of prosperity opened by it, would give to the Confederacy, in practice, the efficiency which had been inferred from its theory.

The close of the war, however, brought no cure for the public embarrassments. The states, relieved from the pressure of foreign danger, and flushed with the enjoyment of independent and sovereign power, instead of a diminished disposition to part with it, persevered in omissions and in measures incompatible with their relations to the federal government, and with those among themselves.

Having served as a member of Congress through the period between March, 1780, and the arrival of peace, in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to Congress. I had found, moreover, that despair of success hung over the compromising principle of April, 1783, for the public necessities, which had been so elaborately planned, and so impressively recommended to the states. Sympathizing, under this aspect of affairs, in the alarm of the friends of free government at the threatened danger of an abortive result to the great, and perhaps last, experiment in its favor, I could not be insensible to the obligation to aid, as far as I could, in averting the calamity. With this view I acceded to the desire of my fellow-citizens of the county, that I should be one of its representatives in the legislature, hoping that I might there best contribute to inculcate the critical posture to which the revolutionary cause was reduced, and the merit of a leading agency of the state in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe.

It required but little time, after taking my seat in the House of Delegates in May, 1784, to discover that, however favorable the general disposition of the state might be towards the Confederacy, the legislature retained the aversion of its predecessors to transfers of power from the state to the government of the Union, notwithstanding the urgent demands of the federal treasury, the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the federal system, and the animosity kindled among the states by their conflicting regulations.

The temper of the legislature, and the wayward course of its proceedings, may be gathered from the Journals of its sessions in the years 1784 and 1785. 68

The failure, however, of the varied propositions in the legislature for enlarging the powers of Congress, the continued failure of the efforts of Congress to obtain from them the means of providing for the debts of the revolution, and of countervailing the commercial laws of Great Britain, a source of much irritation, and against which the separate efforts of the states were found worse than abortive;—these considerations, with the lights thrown on the whole subject

by the free and full discussion it had undergone, led to a general acquiescence in the resolution passed on the 21st of January, 1786, which proposed and invited a meeting of deputies from all the states, as follows:

“ Resolved, That Edmund Randolph, James Madison, Jr., Walter Jones, St. George Tucker, and Merriwether Smith, Esquires, be appointed commissioners, who, or any three of whom, shall meet such commissioners as may be appointed in the other states of the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situations and trade of said states; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several states such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States, in Congress, effectually to provide for the same.”

The resolution had been brought forward some weeks before, on the failure of a proposed grant of power to Congress to collect a revenue from commerce, which had been abandoned by its friends in consequence of material alterations made in the grant by a committee of the whole. The resolution, though introduced by Mr. Tyler, an influential member,—who, having never served in Congress, had more the ear of the house than those whose services there exposed them to an imputable bias,—was so little acceptable, that it was not then persisted in. Being now revived by him, on the last day of the session, and being the alternative of adjourning without any effort for the crisis in the affairs of the Union, it obtained a general vote; less, however, with some of its friends, from a confidence in the success of the experiment, than from a hope that it might prove a step to a more comprehensive and adequate provision for the wants of the Confederacy. 69

It happened, also, that commissioners, appointed by Virginia and Maryland to settle the jurisdiction on waters dividing the two states, had, apart from their official reports, recommended a uniformity in the regulations of the two states on several subjects, and particularly on those having relation to foreign trade. It appeared, at the same time, that Maryland had deemed a concurrence of her neighbors, Delaware and Pennsylvania, indispensable in such a case, who, for like reasons, would require that of their neighbors. So apt and forcible an illustration of the necessity of a uniformity throughout all the states could not but favor the passage of a resolution which proposed a convention having that for its object.

The commissioners appointed by the legislature, and who attended the convention, were Edmund Randolph, the attorney of the state, St. George Tucker, and James Madison. The designation of the time and place, to be proposed for its meeting and communicated to the states, having been left to the commissioners, they named, for the time the first Monday in September, and for the place the city of Annapolis, avoiding the residence of Congress, and large commercial cities, as liable to suspicions of an extraneous influence.

Although the invited meeting appeared to be generally favored, five states only assembled; some failing to make appointments, and some of the individuals appointed not hastening their attendance: the result in both cases being ascribed mainly to a belief that the time had not arrived for such a political reform as might be expected from a further experience of its necessity.

But, in the interval between the proposal of the convention and the time of its meeting, such had been the advance of public opinion in the desired direction, stimulated as it had been by the effect of the contemplated object of the meeting, in turning the general attention to the critical state of things, and in calling forth the sentiments and exertions of the most enlightened and influential patriots, that the convention, thin as it was, did not scruple to decline the limited task assigned to it, and to recommend to the states a convention with powers adequate to the occasion. Nor had it been unnoticed that the commission of the New Jersey deputation had extended its object to a general provision for the exigencies of the Union. A recommendation for this enlarged purpose was accordingly reported by a committee to whom the subject had been referred. [See Vol. I. p. 119, Elliot’s Debates.] It was drafted by Col. Hamilton, and finally agreed to in the following form:—

“To the honorable the legislatures of Virginia, Delaware, Pennsylvania, New Jersey, and New York, the commissioners from the said states, respectively, assembled at Annapolis, humbly beg leave to report:—

“That, pursuant to their several appointments, they met at Annapolis, in the state of Maryland, on the 11th of September instant; and having proceeded to a communication of their powers, they found that the states of New York, Pennsylvania, and Virginia, had, in substance, and nearly in the same terms, authorized their respective commissioners ‘to meet such commissioners as were, or might be, appointed by the other states of the Union, at such time and place as should be agreed upon by the said commissioners, to take into consideration the trade and commerce of the United States; to consider how far a uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony; and to report to the several states such an act, relative to this great object, as, when unanimously ratified by them, would enable the United States, in Congress assembled, effectually to provide for the same.’

“That the state of Delaware had given similar powers to their commissioners, with this difference only, that the act to be framed in virtue of these powers is required to be reported ‘to the United States in Congress assembled, to be agreed to by them, and confirmed by the legislature of every state.’

“That the state of New Jersey had enlarged the object of their appointment, empowering their commissioners ‘to consider how far a uniform system in their commercial regulations, and other important matters, might be necessary to the common interest and permanent harmony of the several states;’ and to report such an act on the subject as, when ratified by them, ‘would enable the United States, in Congress assembled, effectually to provide for the exigencies of the Union.’

“That appointments of commissioners have also been made by the states of New Hampshire, Massachusetts, Rhode Island, and North Carolina, none of whom, however, have attended; but that no information has been received by your commissioners of any appointment having been made by the states of Maryland, Connecticut, South Carolina, or Georgia.

“That, the express terms of the powers to your commissioners supposing a deputation from all the states, and having for object the trade and commerce of the United States, your commissioners did not conceive it advisable to proceed on the business of their mission under the circumstances of so partial and defective a representation.

“Deeply impressed, however, with the magnitude and importance of the object confided to them on this occasion, your commissioners cannot forbear to indulge an expression of their earnest and unanimous wish, that speedy measures may be taken to effect a general meeting of the states in a future convention, for the same and such other purposes as the situation of public affairs may be found to require.

“If, in expressing this wish, or in intimating any other sentiment, your commissioners should seem to exceed the strict bounds of their appointment, they entertain a full confidence, that a conduct dictated by an anxiety for the welfare of the United States will not fail to receive an indulgent construction.

“In this persuasion, your commissioners submit an opinion, that the idea of extending the powers of their deputies to other objects than those of commerce, which has been adopted by the state of New Jersey, was an improvement on the original plan, and will deserve to be incorporated into that of a future convention. They are the more naturally led to this conclusion, as, in the course of their reflections on the subject, they have been induced to think that the power of regulating trade is of such comprehensive extent, and will enter so far into the general system of the federal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment of other parts of the federal system.

“That there are important defects in the system of the federal government is acknowledged by the acts of all those states which have concurred in the present meeting. That the defects, upon a closer examination, may be found greater and more numerous than even these acts imply, is at least so far probable, from the embarrassments which characterise the present state of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode which will unite the sentiments and councils of all the states. In the choice of the mode, your commissioners are of opinion, that a convention of deputies from the different states, for the special and sole purpose of entering into this investigation, and digesting a plan for supplying such defects as may be discovered to exist, will be entitled to a preference, from considerations which will occur without being particularised.

“Your commissioners decline an enumeration of those national circumstances on which their opinion, respecting the propriety of a future convention with more enlarged powers, is founded; as it would be a useless intrusion of facts and observations, most of which have been frequently the subject of public discussion, and none of which can have escaped the penetration of those to whom they would in this  instance be addressed. They are, however, of a nature so serious, as, in the view of your commissioners, to render the situation of the United States delicate and critical, calling for an exertion of the united virtue and wisdom of all the members of the Confederacy.

“Under this impression, your commissioners, with the most respectful deference, beg leave to suggest their unanimous conviction, that it may essentially tend to advance the interests of the Union, if the states by whom they have been respectively delegated would themselves concur, and use their endeavors to procure the concurrence of the other states, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose, to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same.

“Though your commissioners could not with propriety address these observations and sentiments to any but the states they have the honor to represent, they have nevertheless concluded, from motives of respect, to transmit copies of this report to the United States in Congress assembled, and to the executives of the other states.” 70

The recommendation was well received by the legislature of Virginia, which happened to be the first that acted on it; and the example of her compliance was made as conciliatory and impressive as possible. The legislature were unanimous, or very nearly so, on the occasion. As a proof of the magnitude and solemnity attached to it, they placed General Washington at the head of the deputation from the state; and, as a proof of the deep interest he felt in the case, he overstepped the obstacles to his acceptance of the appointment.

The law complying with the recommendation from Annapolis was in the terms following:—

“Whereas, the commissioners who assembled at Annapolis on the 11th of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the commercial interests of the United States, have represented the necessity of extending the revision of the federal system to all its defects; and have recommended that deputies for that purpose be appointed, by the several legislatures, to meet in convention in the city of Philadelphia, on the second Monday of May next—a provision which seems preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would, besides, be deprived of the valuable counsels of sundry individuals who are disqualified by the constitutions or laws of particular states, or restrained by peculiar circumstances, from a seat in that assembly:

“And whereas, the general assembly of this commonwealth, taking into view the actual situation of the Confederacy, as well as reflecting on the alarming representations made from time to time by the United States in Congress, particularly in their act of the 15th of February last, can no longer doubt that the crisis is arrived at which the good people of America are to decide the solemn question, whether they will, by wise and magnanimous efforts, reap the just fruits of that independence which they have so gloriously acquired, and of that union which they have cemented with so much of their common blood; or whether, by giving way to unmanly jealousies and prejudices, or to partial and transitory interests, they will renounce the auspicious blessings prepared for them by the revolution, and furnish to its enemies an eventual triumph over those by whose virtue and valor it has been accomplished:

“And whereas, the same noble and extended policy, and the same fraternal and affectionate sentiments, which originally determined the citizens of this commonwealth to unite with their brethren of the other states, in establishing a federal government, cannot but be felt with equal force, now, as motives to lay aside every inferior consideration, and to concur in such further concessions and provisions as may be necessary to secure the great objects for which that government was instituted, and to render the United States as happy in peace as they have been glorious in war:

“Be it therefore enacted, by the general assembly of the commonwealth of Virginia, That seven commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized as deputies from this commonwealth, to meet such deputies as may be appointed and authorized by other states, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions, as may be necessary to render the Federal Constitution adequate to the exigencies of the Union; and in reporting such an act, for that purpose, to the United States in Congress, as, when agreed to by them, and duly  confirmed by the several states, will effectually provide for the same.

“And be it further enacted, That, in case of the death of any of the said deputies, or of their declining their appointments, the executive are hereby authorized to supply such vacancies; and the governor is requested to transmit  forthwith a copy of this act to the United States in Congress, and to the executives of each of the states in the Union.” *71

A resort to a general convention, to re-model the Confederacy, was not a new idea. It had entered at an early date into the conversations and speculations of the most reflecting and foreseeing observers of the inadequacy of the powers allowed to Congress. In a pamphlet published in May, 1781, at the seat of Congress, Pelatiah Webster, an able though not conspicuous citizen, after discussing the fiscal system of the United States, and suggesting, among other remedial provisions, one including a national bank, remarks, that “the authority of Congress at present is very inadequate to the performance of their duties; and this indicates the necessity of their calling a continental convention, for the express purpose of ascertaining, defining, enlarging, and limiting, the duties and powers of their Constitution.” 72

On the 1st of April, 1783, Col. Hamilton, in a debate in Congress, observed, “that he wished, instead of them, (partial conventions,) to see a general convention take place; and that he should soon, in pursuance of instructions from  his constituents, propose to Congress a plan for that purpose, the object of which would be to strengthen the Federal Constitution.” He alluded, probably, to the resolutions introduced by General Schuyler in the Senate, and passed unanimously by the legislature, of New York, in the summer of 1782, declaring “that the Confederation was defective, in not giving Congress power to provide a revenue for itself, or in not investing them with funds from established and productive sources; and that it would be advisable for Congress to recommend to the states to call a general convention, to revise and amend the Confederation.” It does not appear, however, that his expectation had been fulfilled. 73

In a letter to James Madison from R. H. Lee, then president of Congress, dated the 26th of November, 1784, he says: “It is by many here suggested, as a very necessary step for Congress to take, the calling on the states to form a convention, for the sole purpose of revising the Confederation, so far as to enable Congress to execute, with more energy, effect, and vigor, the powers assigned to it, than it appears by experience that they can do under the present  state of things.” The answer of Mr. Madison remarks: “I hold it for a maxim, that the union of the states is essential to their safety against foreign danger and internal contention; and that the perpetuity and efficacy of the present  system cannot be confided in. The question, therefore, is, in what mode, and at what moment, the experiment for supplying the defects ought to be made.”

In the winter of 1784-5, Noah Webster, whose political and other valuable writings had made him known to the public, proposed, in one of his publications, “a new system of government, which should act, not on the states, but directly on individuals, and vest in Congress full power to carry its laws into effect.” 74

The proposed and expected convention at Annapolis, the first of a general character that appears to have been realized, and the state of the public mind awakened by it, had attracted the particular attention of Congress, and favored  the idea there of a convention with fuller powers for amending the Confederacy. *

It does not appear that in any of these cases the reformed system was to be otherwise sanctioned than by the legislative authority of the states; nor whether, nor how far, a change was to be made in the structure of the depository of federal powers.

The act of Virginia providing for the Convention at Philadelphia was succeeded by appointments from the other states as their legislatures were assembled, the appointments being selections from the most experienced and highest-standing citizens. Rhode Island was the only exception to a compliance with the recommendation from Annapolis, well known to have been swayed by an obdurate adherence to an advantage, which her position gave her, of taxing her neighbors through their consumption of imported supplies—an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation.

As the public mind had been ripened for a salutary reform of the political system, in the interval between the proposal and the meeting of the commissioners at Annapolis, the interval between the last event and the meeting of deputies at Philadelphia had continued to develop more and more the necessity and the extent of a systematic provision for the preservation and government of the Union. Among the ripening incidents was the insurrection of Shays, in Massachusetts, against her government, which was with difficulty suppressed, notwithstanding the influence on the insurgents of an apprehended interposition of the federal troops.

At the date of the Convention, the aspect and retrospect of the political condition of the United States could not but fill the public mind with a gloom which was relieved only by a hope that so select a body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.

It was seen that the public debt, rendered so sacred by the cause in which it had been incurred, remained without any provision for its payment. The reiterated and elaborate efforts of Congress, to procure from the states a more adequate power to raise the means of payment, had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authority making them, none of the states having duly complied with them, some having failed altogether, or nearly so, while in one instance, that of New Jersey, * a compliance was expressly refused; nor was more yielded to the expostulations of members of Congress, deputed to her legislature, than a mere repeal of the law, without a compliance.

The want of authority in Congress to regulate commerce had produced in foreign nations, particularly Great Britain, a monopolizing policy, injurious to the trade of the United States, and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishing all apprehensions of a countervailing policy on the part of the United States. The same want of a general power over commerce led to an exercise of the power, separately, by the states, which not only proved abortive, but engendered rival, conflicting, and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the West India navigation, which was attempted by Virginia, † the states having ports for foreign commerce taxed and irritated the adjoining states trading through them—as New York, Pennsylvania, Virginia, and South Carolina.

Some of the states, as Connecticut, taxed imports from others, as from Massachusetts, which complained in a letter to the executive of Virginia, and doubtless to those of other states. In sundry instances, as of New York, New Jersey, Pennsylvania, and Maryland, the navigation laws treated the citizens of other states as aliens. In certain cases, the authority of the Confederacy was disregarded—as in violation, not only of the treaty of peace, but of treaties with France and Holland; which were complained of to Congress. In other cases, the federal authority was violated by treaties and wars with Indians, as by Georgia; by troops raised and kept up without the consent of Congress, as by Massachusetts; by compacts without the consent of Congress, as between Pennsylvania and New Jersey, and between Virginia and Maryland. From the legislative Journals of Virginia, it appears, that a vote refusing to apply for a sanction of Congress was followed by a vote against the communication of the compact to Congress. In the internal administration of the states, a violation of contracts had become familiar, in the form of depreciated paper made a legal tender, of property substituted for money, of instalment laws, and of the occlusions of the courts of justice, although evident that all such interferences affected the rights of other states, relatively creditors, as well as citizens creditors within the state. Among the defects which had been severely felt, was want of a uniformity in cases requiring it, as laws of naturalization and bankruptcy; a coercive authority operating on individuals; and a guaranty of the internal tranquillity of the states.

As a natural consequence of this distracted and disheartening condition of the Union, the federal authority had ceased to be respected abroad, and dispositions were shown there, particularly in Great Britain, to take advantage of its imbecility, and to speculate on its approaching downfall. At home, it had lost all confidence and credit; the unstable and unjust career of the states had also forfeited the respect and confidence essential to order and good government, involving a general decay of confidence and credit between man and man. It was found, moreover, that those least partial to popular government, or most distrustful of its efficacy, were yielding to anticipations, that, from an increase of the confusion, a government might result more congenial with their taste or their opinions; whilst those most devoted to the principles and forms of republics were alarmed for the cause of liberty itself, at stake in the American experiment, and anxious for a system that would avoid the inefficacy of a mere Confederacy, without passing into the opposite extreme of a consolidated government. It was known that there were individuals who had betrayed a bias towards monarchy, and there had always been some not unfavorable to a partition of the Union into several confederacies, either from a better chance of figuring on a sectional theatre, or that the sections would require stronger governments, or, by their hostile conflicts, lead to a monarchical consolidation. The idea of dismemberment had recently made its appearance in the newspapers.

Such were the defects, the deformities, the diseases, and the ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding and appreciating the constitutional charter, the remedy that was provided. 75

As a sketch on paper, the earliest, perhaps, of a constitutional government for the Union, (organized into regular departments, with physical means operating on individuals,) to be sanctioned by the people of the states, acting in their original and sovereign character, was contained in the letters of James Madison to Thomas Jefferson, of the 19th of March; to Governor Randolph, of the 8th of April, and to General Washington, of the 16th of April, 1787,—for which see their respective dates. 76

The feature in these letters, which vested in the general authority a negative on the laws of the states, was suggested by the negative in the head of the British empire, which prevented collisions between the parts and the whole, and between the parts themselves. It was supposed that the substitution of an elective and responsible authority for an hereditary and irresponsible one would avoid the appearance even of a departure from republicanism. But, although the subject was so viewed in the Convention, and the votes on it were more than once equally divided, it was finally and justly abandoned, as, apart from other objections, it was not practicable among so many states, increasing in number,

and enacting, each of them, so many laws. Instead of the proposed negative, the objects of it were left as finally provided for in the Constitution. 77

On the arrival of the Virginia deputies at Philadelphia, it occurred to them that, from the early and prominent part taken by that state in bringing about the Convention, some initiative step might be expected from them. The resolutions introduced by Governor Randolph were the result of a consultation on the subject, with an understanding that they left all the deputies entirely open to the lights of discussion, and free to concur in any alterations or modifications which their reflections and judgments might approve. The resolutions, as the Journals show, became the basis on which the proceedings of the Convention commenced, and to the developments, variations, and modifications of which, the plan of government proposed by the Convention may be traced. 78

The curiosity I had felt during my researches into the history of the most distinguished confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it, more especially in what related to the process, the principles, the reasons, and the anticipations, which prevailed in the formation of them, determined me to preserve, as far as I could, an exact account of what might pass in the Convention whilst executing its trust; with the magnitude of which I was duly impressed, as I was by the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, and the reasonings, from which the new system of government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials for the history of a Constitution on which would be staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.

In pursuance of the task I had assumed, I chose a seat in front of the presiding member, with the other members on my right and left hands. In this favorable position for hearing all that passed, I noted, in terms legible, and in abbreviations and marks intelligible, to myself, what was read from the chair or spoken by the members; and losing not a moment unnecessarily between the adjournment and reassembling of the Convention, I was enabled to write out my daily notes during the session, or within a few finishing days after its close, in the extent and form preserved, in my own hand, on my files.

In the labor and correctness of this, I was not a little aided by practice, and by a familiarity with the style and the train of observation and reasoning which characterized the principal speakers. It happened, also, that I was not absent a single day, nor more than a casual fraction of an hour in any day, so that I could not have lost a single speech, unless a very short one.

It may be proper to remark that, with a very few exceptions, the speeches were neither furnished, nor revised, nor sanctioned, by the speakers, but written out from my notes, aided by the freshness of my recollections. A further remark may be proper, that views of the subject might occasionally be presented, in the speeches and proceedings, with a latent reference to a compromise on some middle ground, by mutual concessions. The exceptions alluded to were,—first, the sketch furnished by Mr. Randolph of his speech on the introduction of his propositions, on the 29th of May; secondly, the speech of Mr. Hamilton, who happened to call on me when putting the last hand to it, and who acknowledged its fidelity, without suggesting more than a very few verbal alterations, which were made; thirdly, the speech of Gouverneur Morris on the 2d of May, which was communicated to him on a like occasion, and who acquiesced in it without even a verbal change. The correctness of his language and the distinctness of his enunciation were particularly favorable to a reporter. The speeches of Dr. Franklin, excepting a few brief ones, were copied from the written ones read to the Convention by his colleague, Mr. Wilson, it being inconvenient to the doctor to remain long on his feet.

Of the ability and intelligence of those who composed the Convention, the debates and proceedings may be a test; as the character of the work, which was the offspring of their deliberations, must be tested by the experience of the future, added to that of nearly half a century which has passed. But, whatever may be the judgment pronounced on the competency of the architects of the Constitution, or whatever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, derived from my intimate opportunity of observing and appreciating the views of the Convention, collectively and individually, that there never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787 to the object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country.



MONDAY, May 14, 1787,

Was the day fixed for the meeting of the deputies, in Convention, for revising the federal system of government. On that day a small number only had assembled. Seven states were not convened till

FRIDAY, May 25,

When the following members appeared: from

Massachusetts —Rufus King;

New York —Robert Yates and Alexander Hamilton;

New Jersey —David Brearly, William Churchill Houston, and William Patterson;

Pennsylvania —Robert Morris, Thomas Fitzsimons, James Wilson, and Gouverneur Morris;

Delaware —George Reed, Richard Basset, and Jacob Broom;

Virginia —George Washington, Edmund Randolph, John Blair, James Madison, George Mason, George Wythe, and James M’Clurg;

North Carolina —Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, and Hugh Williamson;

South Carolina —John Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, and Pierce Butler;

Georgia —William Few.

Mr. ROBERT MORRIS informed the members assembled that, by the instruction and in behalf of the deputation of Pennsylvania, he proposed GEORGE WASHINGTON, Esq., late commander-in-chief, for president of the Convention. * Mr. JOHN RUTLEDGE seconded the motion, expressing his confidence that the choice would be unanimous; and observing, that the presence of General WASHINGTON forbade any observations on the occasion, which might otherwise be proper.

Gen. WASHINGTON was accordingly unanimously elected by ballot, and conducted to the chair by Mr. R. Morris and Mr. Rutledge, from which, in a very emphatic manner, he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the house towards the involuntary errors which his inexperience might occasion.

Mr. WILSON moved that a secretary be appointed, and nominated Mr. Temple Franklin.

Col. HAMILTON nominated Major Jackson. On the ballot, Major Jackson had five votes, and Mr. Franklin two votes.

On reading the credentials of the deputies, it was noticed that those from Delaware were prohibited from changing the article in the Confederation establishing an equality of votes among the states. 79

The appointment of a committee, on the motion of Mr. C. PINCKNEY, consisting of Messrs. Wythe, Hamilton, and C. Pinckney, to prepare standing rules and orders, was the only remaining step taken on this day.

MONDAY, May 28 .

In Convention.—From Massachusetts, Nathaniel Gorham and Caleb Strong; from Connecticut, Oliver Ellsworth; from Delaware, Gunning Bedford; from Maryland, James M’Henry; from Pennsylvania, Benjamin Franklin, George Clymer, Thomas Mifflin, and Jared Ingersoll,—took their seats.

Mr. WYTHE, from the committee for preparing rules, made a report, which employed the deliberations of this day.

Mr. KING objected to one of the rules in the report authorizing any member to call for the yeas and nays, and have them entered on the minutes. He urged that, as the acts of the Convention were not to bind the constituents, it was unnecessary to exhibit this evidence of the votes; and improper, as changes of opinion would be frequent in the course of the business, and would fill the minutes with contradictions.

Col. MASON seconded the objection, adding, that such a record of the opinions of members would be an obstacle to a change of them on conviction; and in case of its being hereafter promulged, must furnish handles to the adversaries of the result of the meeting.

The proposed rule was rejected, nem. con. The standing rules agreed to were as follows:


“A House to do business shall consist of the deputies of not less than seven states; and all questions shall be decided by the greater number of these which shall be fully represented. But a less number than seven may adjourn from day to day.

“Immediately after the president shall have taken the chair, and the members their seats, the minutes of the preceding day shall be read by the secretary.

“Every member, rising to speak, shall address the president; and, whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet, or paper, printed or manuscript. And of two members rising to speak at the same time, the president shall name him who shall be first heard.

“A member shall not speak oftener than twice, without special leave, upon the same question; and not the second time, before every other who had been silent shall have been heard, if he choose to speak upon the subject.

“A motion, made and seconded, shall be repeated, and, if written, as it shall be when any member shall so require, read aloud, by the secretary, before it shall be debated; and may be withdrawn at any time before the vote upon it shall have been declared.

“Orders of the day shall be read next after the minutes; and either discussed or postponed, before any other business shall be introduced.

“When a debate shall arise upon a question, no motion, other than to amend the question, to commit it, or to postpone the debate, shall be received.

“A question which is complicated shall, at the request of any member, be divided, and put separately upon the propositions of which it is compounded.

“The determination of a question, although fully debated, shall be postponed, if the deputies of any state desire it, until the next day.

“A writing, which contains any matter brought on to be considered, shall be read once throughout, for information; then by paragraphs, to be debated; and again, with the amendments, if any, made on the second reading; and afterwards the question shall be put upon the whole, amended, or approved in its original form, as the case shall be.

“Committees shall be appointed by ballot; and the members who have the greatest number of ballots, although not a majority of the votes present, shall be the committee. When two or more members have an equal number of votes, the member standing first on the list, in the order of taking down the ballots, shall be preferred.

“A member may be called to order by any other member, as well as by the president, and may be allowed to explain his conduct, or expressions, supposed to be reprehensible. And all questions of order shall be decided by the president, without appeal or debate.

“Upon a question to adjourn, for the day, which may be made at any time, if it be seconded, the question shall be put without a debate.

“When the House shall adjourn, every member shall stand in his place until the president pass him.” *

A letter from sundry persons of the state of Rhode Island, addressed to the chairman of the General Convention, was presented to the chair by Mr. GOUVERNEUR MORRIS, and, being read, was ordered to lie on the table for further consideration. †

Mr. BUTLER moved, that the House provide against interruption of business by absence of members, and against licentious publications of their proceedings. To which was added, by Mr. SPAIGHT, a motion to provide that, on the one hand, the House might not be precluded by a vote upon any question from revising the subject-matter of it, when they see cause, nor, on the other hand, be led too hastily to rescind a decision which was the result of mature discussion.

Whereupon it was ordered, that these motions be referred for the consideration of the committee appointed to draw up the standing rules, and that the committee make report thereon.

Adjourned till to-morrow, at ten o’clock.



In Convention. —John Dickinson and Elbridge Gerry, the former from Delaware, the latter from Massachusetts, took their seats. The following rules were added, on the report of Mr. Wythe, from the committee:—

“That no member be absent from the House, so as to interrupt the representation of the state, without leave.

“That committees do not sit whilst the House shall be, or ought to be, sitting.

“That no copy be taken of any entry on the Journal, during the sitting of the House, without leave of the House.

“That members only be permitted to inspect the Journal.

“That nothing spoken in the House be printed, or otherwise published, or communicated, without leave.

“That a motion to reconsider a matter which has been determined by a majority may be made, with leave unanimously given, on the same day on which the vote passed; but otherwise, not without one day’s previous notice; in which last case, if the House agree to the reconsideration, some future day shall be assigned for that purpose.”

Mr. C. PINCKNEY moved, that a committee be appointed to superintend the minutes.

Mr. G. MORRIS objected to it. The entry of the proceedings of the Convention belonged to the secretary as their impartial officer. A committee might have an interest and bias in moudling the entry according to their opinions and wishes.

The motion was negatived—five noes, four ayes.

Mr. RANDOLPH then opened the main business:—

He expressed his regret that it should fall to him, rather than those who were of longer standing in life and political experience, to open the great subject of their mission. But as the Convention had originated from Virginia, and his colleagues supposed that some proposition was expected from them, they had imposed this task on him.

He then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfall.

He observed, that, in revising the federal system, we ought to inquire, first, into the properties which such a government ought to possess; secondly, the defects of the Confederation; thirdly, the danger of our situation; and, fourthly, the remedy.

1. The character of such a government ought to secure, first, against foreign invasion; secondly, against dissensions between members of the Union, or seditions in particular states; thirdly, to procure to the several states various blessings, of which an isolated situation was incapable; fourthly, it should be able to defend itself against encroachment; and, fifthly, to be paramount to the state constitutions.

2. In speaking of the defects of the Confederation, he professed a high respect for its authors, and considered them as having done all that patriots could do, in the then infancy of the science of constitutions and of confederacies; when the inefficiency of requisitions was unknown—no commercial discord had arisen among any states—no rebellion had appeared, as in Massachusetts—foreign debts had not become urgent—the havoc of paper money had not been foreseen— treaties had not been violated; and perhaps nothing better could be obtained, from the jealousy of the states with regard to their sovereignty.

He then proceeded to enumerate the defects:—

First, that the Confederation produced no security against foreign invasion; Congress not being permitted to prevent a war, nor to support it by their own authority. Of this he cited many examples; most of which tended to show that they could not cause infractions of treaties, or of the law of nations, to be punished; that particular states might, by their conduct, provoke war without control; and that, neither militia nor drafts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.

Secondly, that the federal government could not check the quarrel between states, nor a rebellion in any, not having constitutional power, nor means, to interpose according to the exigency.

Thirdly, that there were many advantages which the United States might acquire, which were not attainable under the Confederation; such as a productive impost, counteraction of the commercial regulations of other nations, pushing of commerce ad libitum, c., c.

Fourthly, that the federal government could not defend itself against encroachments from the states.

Fifthly, that it was not even paramount to the state constitutions, ratified as it was in many of the states.

3. He next reviewed the danger of our situation; and appealed to the sense of the best friends of the United States—to the prospect of anarchy from the laxity of government every where—and to other considerations.

4. He then proceeded to the remedy; the basis of which, he said, must be the republican principle.

He proposed, as conformable to his ideas, the following resolutions, which he explained one by one.

“1. Resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, ‘common defence, security of liberty, and general welfare.’

“2. Resolved, therefore, that the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.

“3. Resolved, that the national legislature ought to consist of two branches.

“4. Resolved, that the members of the first branch of the national legislature ought to be elected by the people of the several states every—for the term of—; to be of the age of—years at least; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service: to be ineligible to any office established by a particular state, or under the authority of the United States, except those peculiarly belonging to the functions of the first branch, during the term of service, and for the space of—after its expiration; to be incapable of reelection for the space of—after the expiration of their term of service, and to be subject to recall.

“5. Resolved, that the members of the second branch of the national legislature ought to be elected, by those of the first, out of a proper number of persons nominated by the individual legislatures; to be of the age of—years at least; to hold their offices for a term sufficient to insure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to the public service; and to be ineligible to any office established by a particular state, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service, and for the space of—after the expiration thereof.

“6. Resolved, that each branch ought to possess the right of originating acts; that the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation, and moreover to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States 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 treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof.

“7. Resolved, that a national executive be instituted; to be chosen by the national legislature for the term of—; to receive punctually, at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy existing at the time of increase or diminution; and to be ineligible a second time; and that, besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation.

“8. Resolved, that the executive, and a convenient number of the national judiciary, ought to compose a council of revision, with authority to examine every act of the national legislature, before it shall operate, and every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by—of the members of each branch.

“9. Resolved, that a national judiciary be established; to consist of one or more supreme tribunals, and of inferior tribunals; to be chosen by the national legislature; to hold their offices during good behavior, and to receive punctually, at stated times, 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. That the jurisdiction of the inferior tribunals shall be to hear and determine, in the first instance, and of the supreme tribunal to hear and determine, in the dernier resort, all piracies and felonies on the high seas; captures from an enemy; cases in which foreigners, or citizens of other states, applying to such jurisdictions, may be interested; or which respect the collection of the national revenue,  impeachments of any national officers, and questions which may involve the national peace and harmony.

“10. Resolved, that provision ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

“11. Resolved, that a republican government, and the territory of each state, except in the instance of a voluntary junction of government and territory, ought to be guaranteed by the United States to each state.

“12. Resolved, that provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements.

“13. Resolved, that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary; and that the assent of the national legislature ought not to be required thereto.

“14. Resolved, that the legislative, executive, and judiciary powers, within the several states, ought to be bound by oath to support the Articles of Union.

“15. Resolved, that the amendments which shall be offered to the Confederation by the Convention, ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people, to consider and decide thereon.”

He concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness, and liberty, in the United States, to pass away unimproved. *

It was then resolved, that the House will to-morrow resolve itself into a committee of the whole House, to consider of the state of the American Union; and that the propositions moved by Mr. RANDOLPH be referred to the said committee.

Mr. CHARLES PINCKNEY laid before the House the draft of a federal government which he had prepared, to be agreed upon between the free and independent States of America:—


“We, the people of the states of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following constitution, for the government of ourselves and posterity.

“ ARTICLE I.—The style of this government shall be, The United States of America, and the government shall consist of supreme legislative, executive, and judicial powers.

“ ART. II.—The legislative power shall be vested in a Congress, to consist of two separate Houses; one to be called the House of Delegates; and the other the Senate, who shall meet on the—day of——in every year.

“ ART. III.—The members of the House of Delegates shall be chosen every——year by the people of the several states; and the qualification of the electors shall be the same as those of the electors in the several states for their legislatures. Each member shall have been a citizen of the United States for———years; and shall be of—years of age, and a resident in the state he is chosen for. Until a census of the people shall be taken, in the manner hereinafter mentioned, the House of Delegates shall consist of———, to be chosen from the different states in the following proportions: for New Hampshire,——; for Massachusetts,—; for Rhode Island,—; for Connecticut,—; for New York,—; for New Jersey,—; for Pennsylvania,—; for Delaware,—; for Maryland,—; for Virginia,—; for North Carolina,—; for South Carolina,—; for Georgia,——; and the legislature shall hereinafter regulate the number of delegates by the number of inhabitants, according to the provisions hereinafter made, at the rate of one for every—thousand. All money bills of every kind shall originate in the House of Delegates, and shall not be altered by the Senate. The House of Delegates shall exclusively possess the power of impeachment, and shall choose its own officers; and vacancies therein shall be supplied by the executive authority of the state in the representation from which they shall happen.

“ ART. IV.—The Senate shall be elected and chosen by the House of Delegates; which House, immediately after their meeting, shall choose by ballot——senators from among the citizens and residents of New Hampshire;——from among those of Massachusetts;—from among those of Rhode Island;——from among those of Connecticut;——from among those of New York;——from among those of New Jersey;——from among those of Pennsylvania;—from among those of Delaware;——from among those of Maryland;—from among those of Virginia;——from among those of North Carolina;—from among those of South Carolina; and——from among those of Georgia. The senators chosen from New Hampshire, Massachusetts, Rhode Island, and Connecticut, shall form one class; those from New York, New Jersey, Pennsylvania, and Delaware, one class; and those from Maryland, Virginia, North Carolina, South Carolina, and Georgia, one class. The House of Delegates shall number these classes, one, two, and three; and fix the times of their service by lot. The first class shall serve for—years; the second for—years; and the third for—years. As their times of service expire, the House of Delegates shall fill them up by elections for——years; and they shall fill all vacancies that arise from death or resignation, for the time of service remaining of the members so dying or resigning. Each senator shall be—years of age at least; and shall have been a citizen of the United States for four years before his election; and shall be a resident of the state he is chosen from. The Senate shall choose its own officers.

“ ART. V.—Each state shall prescribe the time and manner of holding elections by the people for the House of Delegates; and the House of Delegates shall be the judges of the elections, returns, and qualifications of their members.

“In each House, a majority shall constitute a quorum to do business. Freedom of speech and debate in the legislature shall not be impeached, or questioned, in any place out of it; and the members of both Houses shall, in all cases, except for treason, felony, or breach of the peace, be free from arrest during their attendance on Congress, and in going to and returning from it. Both Houses shall keep Journals of their proceedings, and publish them, except on secret occasions; and the yeas and nays may be entered thereon at the desire of one—of the members present. Neither House, without the consent of the other, shall adjourn for more than—days, nor to any place but where they are sitting.

“The members of each House shall not be eligible to, or capable of holding, any office under the Union, during the time for which they have been respectively elected; nor the members of the Senate for one year after. The members of each House shall be paid for their services by the states which they represent. Every bill which shall have passed the legislature shall be presented to the President of the United States for his revision; if he approves it, he shall sign it; but if he does not approve it, he shall return it, with his objections, to the House it originated in; which House, if two-thirds of the members present, notwithstanding the President’s objections, agree to  pass it, shall send it to the other House, with the President’s objections; where if two-thirds of the members present also agree to pass it, the same shall become a law; and all bills sent to the President, and not returned by him within—days, shall be laws, unless the legislature, by their adjournment, prevent their return; in which case they shall not be laws.

“ ART. VI.—The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises;

“To regulate commerce with all nations, and among the several states;

“To borrow money, and emit bills of credit;

“To establish post-offices;

“To raise armies;

“To build and equip fleets;

“To pass laws for arming, organizing, and disciplining the militia of the United States;

“To subdue a rebellion in any state, on application of its legislature;

“To coin money, and regulate the value of all coins, and fix the standard of weights and measures;

“To provide such dockyards and arsenals, and erect such fortifications, as may be necessary for the United States, and to exercise exclusive jurisdiction therein;

“To appoint a treasurer, by ballot;

“To constitute tribunals inferior to the supreme court;

“To establish post and military roads;

“To establish and provide for a national university at the seat of government of the United States;

“To establish uniform rules of naturalization;

“To provide for the establishment of a seat of government for the United States, not exceeding—miles square, in which they shall have exclusive jurisdiction;

“To make rules concerning captures from an enemy;

“To declare the law and punishment of piracies and felonies at sea, and of counterfeiting coin, and of all offences against the laws of nations;

“To call forth the and of the militia to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions;

“And to make all laws for carrying the foregoing powers into execution.

“The legislature of the United States shall have the power to declare the punishment of treason, which shall consist only in levying war against the United States, or any of them, or in adhering to their enemies. No person shall be convicted of treason but by the testimony of two witnesses.

“The proportion of direct taxation shall be regulated by the whole number of inhabitants of every description; which number shall, within—years after the first meeting of the legislature, and within the term of every—year after, be taken in the manner to be prescribed by the legislature.

“No tax shall be laid on articles exported from the states; nor capitation tax, but in proportion to the census before directed.

“All laws regulating commerce shall require the assent of two thirds of the members present in each house. The United States shall not grant any title of nobility. The legislature of the United States shall pass no law on the subject of religion: nor touching or abridging the liberty of the press: or shall the privilege of the writ of habeas corpus ever be suspended, except in case of rebellion or invasion.

“All acts made by the legislature of the United States, pursuant to this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions.

“ ART. VII.—The Senate shall have the sole and exclusive power to declare war, and to make treaties, and to appoint ambassadors and other ministers to foreign nations, and judges of the supreme court.

“They shall have the exclusive power to regulate the manner of deciding all disputes and controversies now existing, or which may arise, between the states, respecting jurisdiction or territory.

“ ART. VIII.—The executive power of the United States shall be vested in a President of the United States of America, which shall be his style; and his title shall be His Excellency. He shall be elected for—years; and shall be reeligible.

“He shall from time to time give information to the legislature of the state of the Union, and recommend to their consideration the measures he may think necessary. He shall take care that the laws of the United States be duly executed. He shall commission all the officers of the United States; and, except as to ambassadors, other ministers, and judges of the supreme court, he shall nominate, and, with the consent of the Senate, appoint, all other officers of the United States. He shall receive public ministers from foreign nations; and may correspond with the executives of the different states. He shall have power to grant pardons and reprieves, except in impeachments. He shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states; and shall receive a compensation which shall not be increased or diminished during his continuance in office. At entering on the duties of his office, he shall take an oath faithfully to execute the duties of a President of the United States. He shall be removed from his office on impeachment by the House of Delegates, and conviction, in the supreme court, of treason, bribery, or corruption. In case of his removal, death, resignation, or disability, the president of the Senate shall exercise the duties of his office until another President be chosen. And in case of the death of the president of the Senate, the speaker of the House of Delegates shall do so.

“ ART. IX.—The legislature of the United States shall have the power, and it shall be their duty, to establish such courts of law, equity, and admiralty, as shall be necessary.

“The judges of the courts shall hold their offices during good behavior; and receive a compensation, which shall not be increased or diminished during their continuance in office. One of these courts shall be termed the supreme court; whose jurisdiction shall extend to all cases arising under the laws of the United States, or affecting ambassadors, other public ministers and consuls; to the trial or impeachment of officers of the United States; to all cases of admiralty and maritime jurisdiction. In cases of impeachment affecting ambassadors, and other public ministers, this jurisdiction shall be original; and in all other cases appellate.

“All criminal offences, except in cases of impeachment, shall be tried in the state where they shall be committed. The trials shall be open and public, and shall be by jury.

“ ART. X.—Immediately after the first census of the people of the United States, the House of Delegates shall apportion the Senate by electing for each state, out of the citizens resident therein, one senator for every—members each state shall have in the House of Delegates. Each state shall be entitled to have at least one member in the Senate.

“ ART. XI.—No state shall grant letters of marque and reprisal, or enter into treaty, or alliance, or confederation; nor grant any title of nobility; nor, without the consent of the legislature of the United States, lay any impost on imports; nor keep troops or ships of war in time of peace; nor enter into compacts with other states or foreign powers; nor emit bills of credit; nor make any thing but gold, silver, or copper, a tender in payment of debts; nor engage in war, except for self-defence when actually invaded, on the danger of invasion be so great as not to admit of a delay until the government of the United States can be informed thereof. And, to render these prohibitions effectual, the legislature of the United States shall have the power to revise the laws of the several states that may be supposed to infringe the powers exclusively delegated by this Constitution to Congress, and to negative and annul such as do.

“ ART. XII.—The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Any person, charged with crimes in any state, fleeing from justice to another, shall, on demand of the executive of the state from which he fled, be delivered up, and removed to the state having jurisdiction of the offence.

“ ART. XIII.—Full faith shall be given, in each state, to the acts of the legislature, and to the records and judicial proceedings of the courts and magistrates of every state.

“ ART. XIV.—The legislature shall have power to admit new states into the Union, on the same terms with the original states; provided two thirds of the members present in both houses agree.

“ ART. XV.—On the application of the legislature of a state, the United States shall protect it against domestic insurrection.

“ ART. XVI.—If two thirds of the legislatures of the states apply for the same, the legislature of the United States shall call a convention for the purpose of amending the Constitution; or, should Congress, with the consent of two thirds of each House, propose to the states amendments to the same, the agreement of two thirds of the legislatures of the states shall be sufficient to make the said amendments parts of the Constitution.

“The ratification of the—conventions of—states shall be sufficient for organizing this Constitution.”

Ordered, that the said draft be referred to the committee of the whole appointed to consider the state of the American Union.



Roger Sherman, from Connecticut, took his seat.

The house went into Committee of the Whole on the state of the Union. Mr. Gorham was elected to the chair by ballot.

The propositions of Mr. RANDOLPH which had been referred to the committee being taken up, he moved, on the suggestion of Mr. G. MORRIS, that the first of his propositions,—to wit: “ Resolved, that the Articles of Confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare, ”—should mutually be postponed, in order to consider the three following:—

“1. That a union of the states merely federal will not accomplish the objects proposed by the Articles of Confederation—namely, common defence, security of liberty, and general welfare.

“2. That no treaty or treaties among the whole or part of the states, as individual sovereignties, would be sufficient.

“3. That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.”

The motion for postponing was seconded by Mr. G. MORRIS, and unanimously agreed to.

Some verbal criticisms were raised against the first proposition, and it was agreed, on motion of Mr. BUTLER, seconded by Mr. RANDOLPH, to pass on to the third, which underwent a discussion, less, however, on its general merits than on the force and extent of the particular terms national and supreme.

Mr. CHARLES PINCKNEY wished to know of Mr. Randolph, whether he meant to abolish the state governments altogether. Mr. RANDOLPH replied, that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view.

Mr. BUTLER said, he had not made up his mind on the subject, and was open to the light which discussion might throw on it. After some general observations, he concluded with saying, that he had opposed the grant of powers to Congress heretofore, because the whole power was vested in one body. The proposed distribution of the powers with different bodies changed the case, and would induce him to go great lengths.

Gen. PINCKNEY expressed a doubt whether the act of Congress recommending the Convention, or the commissions of the deputies to it, would authorize a discussion of a system founded on different principles from the Federal Constitution.

Mr. GERRY seemed to entertain the same doubt.

Mr. GOUVERNEUR MORRIS explained the distinction between a federal and a national supreme government; the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation. He contended, that in all communities there must be one supreme power, and one only.

Mr. MASON observed, not only that the present Confederation was deficient in not providing for coercion and punishment against delinquent states, but argued very cogently, that punishment could not, in the nature of things, be executed on the states collectively, and therefore that such a government was necessary as could directly operate on individuals, and would punish those only whose guilt required it.

Mr. SHERMAN admitted that the Confederation had not given sufficient power to Congress, and that additional powers were necessary; particularly that of raising money, which, he said, would involve many other powers. He admitted, also, that the general and particular jurisdictions ought in no case to be concurrent. He seemed, however, not to be disposed to make too great inroads on the existing system; intimating, as one reason, that it would be wrong to lose every amendment by inserting such as would not be agreed to by the states.

It was moved by Mr. READ, and seconded by Mr. CHARLES COTESWORTH PINCKNEY, to postpone the third proposition last offered by Mr. Randolph, viz., “that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary,” in order to take up the following, viz.: “Resolved, that, in order to carry into execution the design of the states in forming this Convention, and to accomplish the objects proposed by the Confederation, a more effective government, consisting of a legislative, executive, and judiciary, ought to be established.” The motion to postpone for this purpose was lost.

Massachusetts, Connecticut, Delaware, South Carolina, ay, 4; New York, Pennsylvania, Virginia, North Carolina, no, 4.

On the question, as moved by Mr. BUTLER, on the third proposition, it was resolved, in committee of the whole, “that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.”

Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, ay, 6; Connecticut, no, 1; New York, divided, 80 (Colonel Hamilton, ay, Mr. Yates, no.)

The following resolution, being the second of those proposed by Mr. RANDOLPH, was taken up, viz.:

“ That the rights of suffrage in the national legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases. ”

Mr. MADISON, observing that the words “ or to the number of free inhabitants ” might occasion debates which would divert the committee from the general question whether the principle of representation should be changed, moved that they might be struck out.

Mr. KING observed, that the quotas of contribution, which would alone remain as the measure of representation, would not answer; because, waiving every other view of the matter, the revenue might hereafter be so collected by the general government that the sums respectively drawn from the states would not appear, and would besides be continually varying.

Mr. MADISON admitted the propriety of the observation, and that some better rule ought to be found.

Col. HAMILTON moved to alter the resolution so as to read, “that the rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitants.” Mr. SPAIGHT seconded the motion.

It was then moved that the resolution be postponed; which was agreed to.

Mr. RANDOLPH and Mr. MADISON then moved the following resolution: “That the rights of suffrage in the national legislature ought to be proportioned.”

It was moved, and seconded, to amend it by adding, “and not according to the present system;” which was agreed to.

It was then moved and seconded to alter the resolution so as to read, “That the rights of suffrage in the national legislature ought not to be according to the present system.”

It was then moved and seconded to postpone the resolution moved by Mr. Randolph and Mr. Madison; which being agreed to,—

Mr. Madison moved, in order to get over the difficulties, the following resolution: “That the equality of suffrage established by the Articles of Confederation ought not to prevail in the national legislature; and that an equitable ratio of representation ought to be substituted.” This was seconded by Mr. GOUVERNEUR MORRIS, and, being generally relished, would have been agreed to; when Mr. READ moved, that the whole clause relating to the point of representation be postponed; reminding the committee that the deputies from Delaware were restrained by their commission from assenting to any change of the rule of

suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention.

Mr. GOUVERNEUR MORRIS observed, that the valuable assistance of those members could not be lost without real concern; and that so early a proof of discord in the Convention as the secession of a state would add much to the regret; that the change proposed was, however, so fundamental an article in a national government, that it could not be dispensed with.

Mr. MADISON observed, that, whatever reason might have existed for the equality of suffrage when the union was a federal one among sovereign states, it must cease when a national government should be put into the place. In the former case, the acts of Congress depended so much for their efficacy on the coöperation of the states, that these had a weight, both within and without Congress, nearly in proportion to their extent and importance. In the latter case, as the acts of the general government would take effect without the intervention of the state legislatures, a vote from a small state would have the same efficacy and importance as a vote from a large one, and there was the same reason for different numbers of representatives from different states, as from counties of different extents within particular states. He suggested, as an expedient for at once taking the sense of the members on this point, and saving the Delaware deputies from embarrassment, that the question should be taken in committee, and the clause, on report to the House, be postponed without a question there. This, however, did not appear to satisfy Mr. Read.

By several it was observed, that no just construction of the act of Delaware could require or justify a secession of her deputies, even if the resolution were to be carried through the House as well as the committee. It was finally agreed, however, that the clause should be postponed; it being understood that, in the event, the proposed change of representation would certainly be agreed to, no objection or difficulty being started from any other quarter than from Delaware.

The motion of Mr. Read to postpone being agreed to, the committee then rose; the chairman reported progress; and the House, having resolved to resume the subject in committee to-morrow, adjourned to ten o’clock.


William Pierce, from Georgia, took his seat. 81

In the committee of the whole on Mr. RANDOLPH’S resolutions,—the third resolution, “ that the national legislature ought to consist of two branches, ” was agreed to without debate, or dissent, except that of Pennsylvania,—given probably from complaisance to Dr. Franklin, who was understood to be partial to a single house of legislation.

The fourth resolution, first clause, “ that the members of the first branch of the national legislature ought to be elected by the people of the several states, ” being taken up,—

Mr. SHERMAN opposed the election by the people, insisting that it ought to be by the state legislatures. The people, he said, immediately, should have as little to do as may be about the government. They want information, and are constantly liable to be misled.

Mr. GERRY. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts, it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of government. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamor in Massachusetts for the reduction of salaries, and the attack made on that of the governor, though secured by the spirit of the constitution itself. He had, he said, been too republican heretofore: he was still, however, republican, but had been taught by experience the danger of the levelling spirit.

Mr. MASON argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the government. It was, so to speak, to be our House of Commons. It ought to know and sympathize with every part of the community, and ought therefore to be taken, not only from different parts of the whole republic, but also from different districts of the larger members of it; which had in several instances, particularly in Virginia, different interests and views arising from difference of produce, of habits, c. c. He admitted that we had been too democratic, but was afraid we should incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy; considering that, however affluent their circumstances, or elevated their situations, might be, the course of a few years not only might, but certainly would, distribute their posterity throughout the lowest classes of society. Every selfish motive, therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest, than of the highest, order of citizens.

Mr. WILSON contended strenuously for drawing the most numerous branch of the legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican government, this confidence was peculiarly essential. He also thought it wrong to increase the weight of the state legislatures by making them the electors of the national legislature. All interference between the general and local governments should be obviated as much as possible. On examination, it would be found that he opposition 82 of states to federal measures had proceeded much more from the officers of the states than from the people at large.

Mr. MADISON considered the popular election of one branch of the national legislature as essential to every plan of free government. He observed, that, in some of the states, one branch of the legislature was composed of men already removed from the people by an intervening body of electors; that, if the first branch of the general legislature should be elected by the state legislatures, the second branch elected by the first, the executive by the second together with the first, and other appointments again made for subordinate purposes by the executive, the people would be lost sight of altogether, and the necessary sympathy between them and their rulers and officers too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the legislature, and in the executive and judiciary branches of the government. He thought, too, that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should

stand merely on the pillars of the legislatures.

Mr. GERRY did not like the election by the people. The maxims taken from the British constitution were often fallacious when applied to our situation, which was extremely different. Experience, he said, had shown that the state legislatures, drawn immediately from the people, did not always possess their confidence. He had no objection, however, to an election by the people, if it were so qualified that men of honor and character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number, out of which the state legislatures should be bound to choose.

Mr. BUTLER thought an election by the people an impracticable mode.

On the question for an election of the first branch of the national legislature by the people,—

Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, ay, 6, New Jersey, South Carolina, no, 2; Connecticut, Delaware, divided.

The remaining clauses of the fourth resolution, relating to the qualifications of members of the national legislature, being postponed, nem. con., as entering too much into detail for general propositions,—

The committee proceeded to the fifth resolution, that the second [ or senatorial ] branch of the national legislature ought to be chosen, by the first branch, out of persons nominated by the state legislatures.

Mr. SPAIGHT contended, that the second branch ought to be chosen by the state legislatures, and moved an amendment to that effect.

Mr. BUTLER apprehended, that the taking so many powers out of the hands of the states as was proposed tended to destroy all that balance and security of interests among the states which it was necessary to preserved and called on Mr. Randolph, the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch.

Mr. RANDOLPH observed, that he had, at the time of offering his propositions, stated his ideas, as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed, that the general object was to provide a cure for the evils under which the United States labored; that, in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy; that some check therefore was to be sought for against this tendency of our governments; and that a good Senate seemed most likely to answer the purpose.

Mr. KING reminded the committee that the choice of the second branch, as proposed, (by Mr. Spaight,) viz., by the state legislatures, would be impracticable unless it was to be very numerous, or the idea of proportion among the states was to be disregarded. According to this idea, there must be eighty or a hundred members to entitle Delaware to the choice of one of them.

Mr. SPAIGHT withdrew his motion.

Mr. WILSON opposed boh a nomination by the state legislatures, and an election by the first branch of the national legislature, because the second branch of the latter ought to be independent of both. He thought both branches of the national legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of choosing the Senate of New York—to wit, of uniting several election districts for one branch, in choosing members for the other branch, as a good model.

Mr. MADISON observed, that such a mode would destroy the influence of the smaller states associated with larger ones in the same district; as the latter would choose from within themselves, although better men might be found in the former. The election of senators in Virginia, where large and small counties were often formed into one district for the purpose, had illustrated this consequence. Local partiality would often prefer a resident within the county or state to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own state.

Mr. SHERMAN favored an election of one member by each of the state legislatures.

Mr. PINCKNEY moved to strike out the “nomination by the state legislatures:” on this question—

* Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 9; Delaware, divided.

On the whole question for electing by the first branch out of nominations by the state legislatures—Massachusetts, Virginia, South Carolina, ay, 3; Connecticut New York, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no, 7.

So the clause was disagreed to, and a chasm left in this part of the plan. 83

The sixth resolution, stating the cases in which the national legislature ought to legislate, was next taken into discussion. On the question whether each branch should originate laws, there was a unanimous affirmative, without debate.

On the question for transferring all the legislative powers of the existing Congress to this assembly, there was also a unanimous affirmative, without debate.

On the proposition for giving legislative power in all cases to which the state legislatures were individually incompetent, —Mr. PINCKNEY and Mr. RUTLEDGE objected to the vagueness of the term “ incompetent, ” and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.

Mr. BUTLER repeated his fears that we were running into an extreme, in taking away the powers of the states, and called on Mr. Randolph for the extent of his meaning.

Mr. RANDOLPH disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.

Mr. MADISON said, that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national legislature, but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be, he could not yet tell. But he should shrink from nothing which should be found essential to such a form of government as would provide for the safety, liberty, and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.

On the question for giving powers, in cases to which the states are not competent—

Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 9; Connecticut, divided, (Sherman, no, Ellsworth, ay.)

The other clauses, giving powers necessary to preserve harmony among the states, to negative all state laws contravening, in the opinion of the national legislature, the Articles of Union, down to the last clause, (the words “or any treaties subsisting under the authority of the Union,” being added after the words “contravening, c. the articles of the Union,” on motion of Dr. Franklin,) were agreed to without debate or dissent.

The last clause of the sixth resolution, authorizing an exertion of the force of the whole against a delinquent state, came next into consideration.

Mr. MADISON observed, that the more he reflected on the use of force, the more he doubted the practicability, the justice, and the efficacy of it, when applied to people collectively, and not individually. A union of the states containing such an ingredient seemed to provide for its own destruction. The use of force against a state would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. This motion was agreed to, nem. con.

The committee then rose, and the house adjourned.

FRIDAY, June 1.

William Houstoun, from Georgia, took his seat.

The committee of the whole proceeded to the seventh resolution that a national executive be instituted, to be chosen by the national legislature for the term of—years, c., to be ineligible thereafter, to possess the executive powers of Congress, c.

Mr. PINCKNEY was for a vigorous executive, but was afraid the executive powers of the existing Congress might extend to peace and war, c.; which would render the executive a monarchy of the worst kind, to wit, an elective one.

Mr. WILSON moved that the executive consist of a single person. Mr. C. PINCKNEY seconded the motion, so as to read “that a national executive, to consist of a single person, be instituted.”

A considerable pause ensuing, and the chairman asking if he should put the question, Dr. FRANKLIN observed, that it was a point of great importance, and wished that the gentlemen would deliver their sentiments on it before the question was put.

Mr. RUTLEDGE animadverted on the shyness of gentlemen on this and other subjects. He said it looked as if they supposed themselves precluded, by having frankly disclosed their opinions, from afterwards changing them, which he did not take to be at all the case. He said he was for vesting the executive power in a single person, though he was not for giving him the power of war and peace. A single man would feel the greatest responsibility, and administer the public affairs best.

Mr. SHERMAN said, he considered the executive magistracy as nothing more than an institution for carrying the will of the legislature into effect; that the person or persons ought to be appointed by, and accountable to, the legislature only, which was the depository of the supreme will of the society. As they were the best judges of the business which ought to be done by the executive department, and consequently of the number necessary from time to time for doing

it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more, as experience might dictate.

Mr. WILSON preferred a single magistrate, as giving most energy, despatch, and responsibility, to the office. He did not consider the prerogatives of the British monarch as a proper guide in defining the executive powers. Some of these prerogatives were of a legislative nature; among others, that of war and peace, c. The only powers he considered strictly executive were those of executing the laws, and appointing officers, not appertaining to, and appointed by, the legislature.

Mr. GERRY favored the policy of annexing a council to the executive, in order to give weight and inspire confidence.

Mr. RANDOLPH strenuously opposed a unity in the executive magistracy. He regarded it as the fœtus of monarchy. We had, he said, no motive to be governed by the British government as our prototype. He did not mean, however, to throw censure on that excellent fabric. If we were in a situation to copy it, he did not know that he should be opposed to it; but the fixed genius of the people of America required a different form of government. He could not see why the great requisites for the executive department,—vigor, despatch, and responsibility,—could not be found in three men, as well as in one man. The executive ought to be independent. It ought, therefore, in order to support its independence, to consist of more than one.

Mr. WILSON said, that unity in the executive, instead of being the fœtus of monarchy, would be the best safeguard against tyranny. He repeated, that he was not governed by the British model, which was inapplicable to the situation of this country, the extent of which was so great, and the manners so republican, that nothing but a great confederated republic would do for it.

Mr. Wilson’s motion for a single magistrate was postponed by common consent, the committee seeming unprepared for any decision on it, and the first part of the clause agreed to, viz., “that a national executive be instituted.” 84

Mr. MADISON thought it would be proper, before a choice should be made between a unity and a plurality in the executive, to fix the extent of the executive authority; that as certain powers were in their nature executive, and must be given to that department, whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely intrusted to a single officer. He accordingly moved that so much of the clause before the committee as related to the powers of the executive should be struck out, and that after the words “that a national executive ought to be instituted,” there be inserted the words following, viz., “with power to carry into effect the national laws, to appoint to offices in cases not otherwise provided for, and to execute such other powers, ‘not legislative nor judiciary in their nature,’ as may from time to time be delegated by the national legislature.” The words “not legislative nor judiciary in their nature,” were added to the proposed amendment, in consequence of a suggestion, by Gen. PINCKNEY, that improper powers might otherwise be delegated.

Mr. WILSON seconded this motion.

Mr. PINCKNEY moved to amend the amendment by striking out the last member of it, viz., “and to execute such other powers, not legislative nor judiciary in their nature, as may from time to time be delegated.” He said they were unnecessary, the object of them being included in the “power to carry into effect the national laws.”

Mr. RANDOLPH seconded the motion.

Mr. MADISON did not know that the words were absolutely necessary, or even the preceding words, “to appoint to offices, c.,” the whole being, perhaps, included in the first member of the proposition. He did not, however, see any inconvenience in retaining them; and cases might happen in which they might serve to prevent doubts and misconstructions.

In consequence of the motion of Mr. Pinckney, the question on Mr. Madison’s motion was divided; and the words objected to by Mr. Pinckney struck out, by the votes of

Connecticut, New York, New Jersey, Pennsylvania, Delaware, North Carolina, and Georgia, 7, against Massachusetts, Virginia, and South Carolina, 3; the preceding part of the motion being first agreed to,—Connecticut, divided; all the other states in the affirmative.

The next clause in the seventh resolution, relating to the mode of appointing, and the duration of, the executive, being under consideration,

Mr. WILSON said, he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say, however, at least, that, in theory, he was for an election by the people.

Experience, particularly in New York and Massachusetts, showed that an election of the first magistrate by the people at large was both a convenient and successful mode. The objects of choice in such cases must be persons whose merits have general notoriety.

Mr. SHERMAN was for the appointment by the legislature, and for making him absolutely dependent on that body, as it was the will of that which was to be executed. An independence of the executive on the supreme legislature was, in his opinion, the very essence of tyranny, if there was any such thing.

Mr. WILSON moved, that the blank for the term of duration should be filled with three years, observing, at the same time, that he preferred this short period on the supposition that a reëligibility would be provided for.

Mr. PINCKNEY moved for seven years.

Mr. SHERMAN was for three years, and against the doctrine of rotation, as throwing out of office the men best qualified to execute its duties.

Mr. MASON was for seven years at least, and for prohibiting a reëligibility, as the best expedient, both for preventing the effect of a false complaisance on the side of the legislature towards unfit characters, and a temptation on the side of the executive to intrigue with the legislature for a reappointment.

Mr. BEDFORD was strongly opposed to so long a term as seven years. He begged the committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period, and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment, he said, would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years.

On the question for seven years, —

New York, New Jersey, Pennsylvania, Delaware, Virginia, ay, 5; Connecticut, North Carolina, South Carolina, Georgia, no, 4; Massachusetts, divided.

There being five ayes, four noes, and one divided, a question was asked, whether a majority had voted in the affirmative. The president decided that it was an affirmative vote. 85

The mode of appointing the executive was the next question.

Mr. WILSON renewed his declarations in favor of an appointment by the people. He wished to derive not only both branches of the legislature from the people, without the intervention of the state legislatures, but the executive also, in order to make them as independent as possible of each other, as well as of the states.

Col. MASON favors the idea, but thinks it impracticable. He wishes, however, that Mr. Wilson might have time to digest it into his own form. The clause “to be chosen by the national legislature,” was accordingly postponed.

Mr. RUTLEDGE suggests an election of the executive by the second branch only of the national legislature.

The committee then rose, and the house adjourned.


William Samuel Johnson, from Connecticut, Daniel of St. Thomas Jenifer, from Maryland, and John Lansing, Jun., from New York, took their seats.

In Committee of the Whole, it was moved and seconded to postpone the resolutions of Mr. Randolph respecting the executive, in order to take up the second branch of the legislature;

Which being negatived, by Massachusetts, Connecticut, Delaware, Virginia, North Carolina, South Carolina, Georgia, 7, against New York, Pennsylvania, Maryland, 3, the mode of appointing the executive was resumed.

Mr. WILSON made the following motion, to be substituted for the mode proposed by Mr. Randolph’s resolution, “that the executive magistracy shall be elected in the following manner:—

That the states be divided into—districts, and that the persons qualified to vote in each district for members of the first branch of the national legislature elect—members for their respective districts to be electors of the executive magistracy: that the said electors of the executive magistracy meet at—, and they, or any—of them, so met, shall proceed to elect by ballot, but not out of their 86 own body,—person—in whom the executive authority of the national government shall be vested.”

Mr. WILSON repeated his arguments in favor of an election without the intervention of the states. He supposed, too, that this mode would produce more confidence among the people in the first magistrate, than an election by the national legislature.

Mr. GERRY opposed the election by the national legislature. There would be a constant intrigue kept up for the appointment. The legislature and the candidates would bargain and play into one another’s hands. Votes would be given by the former under promises or expectations, from the latter, of recompensing them by services to members of the legislature or their friends. He liked the principle of Mr. Wilson’s motion, but feared it would alarm and give a handle to the state partisans, as tending to supersede altogether the state authorities. He thought the community not yet ripe for stripping the states of their powers, even such as might not be requisite for local purposes. He was for waiting till the people should feel more the necessity of it. He seemed to prefer the taking the suffrages of the states, instead of electors; or letting the legislatures nominate, and the electors appoint. He was not clear that the people ought to act directly even in the choice of electors, being too little informed of personal characters in large districts, and liable to deceptions.

Mr. WILLIAMSON could see no advantage in the introduction of electors chosen by the people, who would stand in the same relation to them as the state legislatures; whilst the expedient would be attended with great trouble and expense.

On the question for agreeing to Mr. Wilson’s substitute, it was negatived.

Pennsylvania, Maryland, ay, 2; Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, 8. (New York, in the printed Journal, divided.)

On the question for electing the executive, by the national legislature, for the term of seven years, it was agreed to.

Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 8; Pennsylvania, Maryland, no, 2.

Dr. FRANKLIN moved, that what related to the compensation for the services of the executive be postponed, in order to substitute, “whose necessary expenses shall be defrayed, but who shall receive no salary, stipend, fee, or reward whatsoever for their services.” He said that, being very sensible of the effect of age on his memory, he had been unwilling to trust to that for the observations which seemed to support his motion, and had reduced them to writing, that he might, with the permission of the committee, read, instead of speaking, them. Mr. Wilson made an offer to read the paper, which was accepted. The following is a literal copy of the paper:—

“Sir: It is with reluctance that I rise to express a disapprobation of any one article of the plan for which we are so much obliged to the honorable gentleman who laid it before us. From its first reading I have borne a good will to it, and in general wished it success. In this particular of salaries to the executive branch, I happen to differ; and as my opinion may appear new and chimerical, it is only from a persuasion that it is right, and from a sense of duty, that I hazard it. The committee will judge of my reasons when they have heard them, and their judgment may possibly change mine. I think I see inconveniences in the appointment of salaries; I see none in refusing them, but, on the contrary, great advantages.

“Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately, each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men a post of honor, that shall be at the same time a place of profit, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British government so tempestuous. The struggles for them are the true sources of all those factions which are perpetually dividing the nation, distracting its councils, hurrying sometimes into fruitless and mischievous wars, and often compelling a submission to dishonorable terms of peace.

“And of what kind are the men that will strive for this profitable preëminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your government, and be your rulers. And these, too, will be mistaken in the expected happiness of their situation; for their vanquished competitors, of the same spirit, and from the same motives, will perpetually be endeavoring to distress their administration, thwart their measures, and render them odious to the people.

“Besides these evils, sir, though we may set out in the beginning with moderate salaries, we shall find that such will not be of long continuance. Reasons will never be wanting for proposed augmentations. And there will always be a party for giving more to the rulers, that the rulers may be able in return to give more to them. Hence, as all history informs us, there has been in every state and kingdom a constant kind of warfare between the governing and governed, the one striving to obtain more for its support, and the other to pay less. And this has alone occasioned great convulsions, actual civil wars, ending either in dethroning of the princes or enslaving of the people. Generally, indeed, the ruling power carries its point, the revenues of princes constantly increasing; and we see that they are never satisfied, but always in want of more. The more the people are discontented with the oppression of taxes, the greater need the prince has of money to distribute among his partisans, and pay the troops that are to suppress all resistance, and enable him to plunder at pleasure. There is scarce a king in a hundred, who would not, if he could, follow the example of Pharaoh—get first all the people’s money, then all their lands, and then make them and their children servants forever. It will be said, that we don’t propose to establish kings. I know it: but there is a natural inclination in mankind to kingly government. It sometimes relieves them from aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among citizens, and that they like. I am apprehensive, therefore, perhaps too apprehensive, that the government of these states may in future times end in a monarchy. But this catastrophe I think may be long delayed, if in our proposed system we do not sow the seeds of contention, faction, and tumult, by making our posts of honor places of profit. If we do, I fear that, though we do employ at first a number, and not a single person, the number will in time be set aside; it will only nourish the fœtus of a king, as the honorable gentleman from Virginia very aptly expressed it, and a king will the sooner be set over us.

“It may be imagined by some that this is a Utopian idea, and that we can never find men to serve us in the executive department without paying them well for their services. I conceive this to be a mistake. Some existing facts present themselves to me, which incline me to a contrary opinion. The high sheriff of a county, in England, is an honorable office, but it is not a profitable one. It is rather expensive, and therefore not sought for. But yet it is executed, and well executed, and usually by some of the principal gentlemen of the county. In France, the office of counsellor, or member of their judiciary parliament, is more honorable. It is therefore purchased at a high price: there are, indeed, fees on the law proceedings, which are divided among them; but these fees do not amount to more than three per cent. on the sum paid for the place. Therefore, as legal interest is there at five per cent., they in fact pay two per cent. for being allowed to do the judiciary business of the nation, which is, at the same time, entirely exempt from the burden of paying them any salaries for their services. I do not, however, mean to recommend this as an eligible mode for our judiciary department. I only bring the instance to show, that the pleasure of doing good and serving their country, and the respect such conduct entitles them to, are sufficient motives with some minds to give up a great portion of their time to the public, without the mean inducement of pecuniary satisfaction.

“Another instance is that of a respectable society who have made the experiment, and practised it with success more than one hundred years. I mean the Quakers. It is an established rule with them, that they are not to go to law; but in their controversies they must apply to their monthly, quarterly, and yearly meetings. Committees of these sit with patience to hear the parties, and spend much time in composing their differences. In doing this, they are supported by a sense of duty, and the respect paid to usefulness. It is honorable to be so employed, but it is never made profitable by salaries, fees, or perquisites. And, indeed, in all cases of public service, the less the profit the greater the honor.

“To bring the matter nearer home: Have we not seen the greatest and most important of our offices, that of general of our armies, executed, for eight years together, without the smallest salary, by a patriot whom I will not now offend by any other praise; and this through fatigues and distresses, in common with the other brave men, his military friends and companions, and the constant anxieties peculiar to his station? And shall we doubt finding three or four men,

in all the United States, with public spirit enough to bear sitting in peaceful council for perhaps an equal term, merely to preside over our civil concerns, and see that our laws are duly executed? Sir, I have a better opinion of our country. I think we shall never be without a sufficient number of wise and good men to undertake and execute well and faithfully the office in question.

“Sir, the saving of the salaries that may at first be proposed is not an object with me. The subsequent mischiefs of proposing them are what I apprehend. And therefore it is, that I move the amendment. If it is not seconded or accepted, I must be contented with the satisfaction of having delivered my opinion frankly, and done my duty.”

The motion was seconded by Col. HAMILTON, with the view, he said, merely of bringing so respectable a proposition before the committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition was postponed for the consideration of the members. It was treated with great respect, but rather for the author of it than from any apparent conviction of its expediency or practicability. 87

Mr. DICKINSON moved, “that the executive be made removable by the national legislature, on the request of a majority of the legislatures of individual states.” It was necessary, he said, to place the power of removing somewhere. He did not like the plan of impeaching the great officers of state. He did not know how provision could be made for the removal of them in a better mode than that which he had proposed. He had no idea of abolishing the state governments, as some gentlemen seemed inclined to do. The happiness of this country, in his opinion, required considerable powers to be left in the hands of the states.

Mr. BEDFORD seconded the motion.

Mr. SHERMAN contended, that the national legislature should have power to remove the executive at pleasure.

Mr. MASON. Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. He opposed decidedly the making the executive the mere creature of the legislature, as a violation of the fundamental principle of good government.

Mr. MADISON and Mr. WILSON observed, that it would leave an equality of agency in the small with the great states; that it would enable a minority of the people to prevent the removal of an officer who had rendered himself justly criminal in the eyes of a majority; that it would open a door for intrigues against him in states where his administration, though just, might be unpopular; and might tempt him to pay court to particular states whose leading partisans he might fear, or wish to engage as his partisans. They both thought it bad policy to introduce such a mixture of the state authorities, where their agency could be otherwise supplied.

Mr. DICKINSON considered the business as so important that no man ought to be silent or reserved. He went into a discourse of some length, the sum of which was, that the legislative, executive, and judiciary departments ought to be made as independent as possible; but that such an executive as some seemed to have in contemplation was not consistent with a republic; that a firm executive could only exist in a limited monarchy. In the British government itself, the weight of the executive arises from the attachments which the crown draws to itself, and not merely from the force of its prerogatives. In place of these attachments, we must look out for something else. One source of stability is the double branch of the legislature. The division of the country into distinct states formed the other principal source of stability. This division ought therefore to be maintained, and considerable powers to be left with the states. This was the ground of his consolation for the future fate of his country. Without this, and in case of a consolidation of the states into one great republic, we might read its fate in the history of smaller ones. A limited monarchy he considered as one of the best governments in the world. It was not certain that the same blessings were derivable from any other form. It was certain that equal blessings had never yet been derived from any of the republican forms. A limited monarchy, however, was out of the question. The spirit of the times, the state of our affairs, forbade the experiment, if it were desirable. Was it possible, moreover, in the nature of things, to introduce it, even if these obstacles were less insuperable? A house of nobles was essential to such a government. Could these be created by a breath, or by a stroke of the pen? No. They were the growth of ages, and could only arise under a complication of circumstances none of which existed in this country. But, though a form the most perfect, perhaps, in itself, be unattainable, we must not despair. If ancient republics have been found to flourish for a moment only, and then vanish forever, it only proves that they were badly constituted, and that we ought to seek for every remedy for their diseases. One of these remedies he conceived to be the accidental lucky division of this country into distinct states—a division which some seemed desirous to abolish altogether.

As to the point of representation in the national legislature, as it might affect states of different sizes, he said it must probably end in mutual concession. He hoped that each state would retain an equal voice, at least in one branch of the national legislature, and supposed the sums paid within each state would form a better ratio for the other branch than either the number of inhabitants or the quantum of property.

A motion being made to strike out “on request by a majority of the legislatures of the individual states,” and rejected, (Connecticut, South Carolina, and Georgia, being ay, the rest no,) the question was taken on Mr. Dickinson’s motion, “for making the executive removable by the national legislature at the request of a majority of state legislatures,” which was also rejected,—all the states being in the negative, except Delaware, which gave an affirmative vote. 88

The question for making the executive ineligible after seven years, was next taken and agreed to.

Massachusetts, New York, Delaware, Maryland, Virginia, North Carolina, South Carolina, ay, 7; Connecticut, Georgia, no, 2; Pennsylvania, divided. (In the printed Journal, Georgia, ay.)

Mr. WILLIAMSON, seconded by Mr. DAVIE, moved to add to the last clause the words, “and to be removable on impeachment and conviction of mal-practice or neglect of duty;” which was agreed to.

Mr. RUTLEDGE and Mr. C. PINCKNEY moved, that the blank for the number of persons in the executive be filled with the words, “one person.” They supposed the reasons to be so obvious and conclusive in favor of one, that no member would oppose the motion.

Mr. RANDOLPH opposed it with great earnestness, declaring that he should not do justice to the country which sent him, if he were silently to suffer the establishment of a unity in the executive department. He felt an opposition to it which he believed he should continue to feel as long as he lived. He urged, first, that the permanent temper of the people was adverse to the very semblance of monarchy; secondly, that a unity was unnecessary, a plurality being equally competent to all the objects of the department; thirdly, that the necessary confidence would never be reposed in a single magistrate; fourthly, that the appointments would generally be in favor of some inhabitant near the centre of the community, and consequently the remote parts would not be on an equal footing. He was in favor of three members of the executive, to be drawn from different portions of the country.

Mr. BUTLER contended strongly for a single magistrate, as most likely to answer the purpose of the remote parts. If one man should be appointed, he would be responsible to the whole, and would be impartial to its interests. If three or more should be taken from as many districts, there would be a constant struggle for local advantages. In military matters, this would be particularly mischievous. He said, his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted Holland, when threatened with invasion by the imperial troops. One man was for directing the force to the defence of this part, another to that part of the country, just as he happened to be swayed by prejudice or interest.

The motion was then postponed; the committee rose; and the House adjourned.

MONDAY, June 4.

In Committee of the Whole. —The question was resumed, on motion of Mr. PINCKNEY, seconded by Mr. WILSON, “Shall the blank for the number of the executive be filled with a single person?”

Mr. WILSON was in favor of the motion. It had been opposed by the gentleman from Virginia, (Mr. Randolph;) but the arguments used had not convinced him. He observed, that the objections of Mr. Randolph were levelled not so much against the measure itself as against its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part were an important one, yet he would give it up rather than lose the whole. On examination, he could see no evidence of the alleged antipathy of the people. On the contrary, he was persuaded that it does not exist. All know that a single magistrate is not a king. One fact has great weight with him. All the thirteen states, though agreeing in scarce any other instance, agree in placing a single magistrate at the head of the government. The idea of three heads has taken place in none. The degree of power is, indeed, different; but there are no coördinate heads. In addition to his former reasons for preferring a unity, he would mention another. The tranquillity, not less than the vigor, of the government, he thought, would be favored by it. Among three equal members, he foresaw nothing but uncontrolled, continued, and violent animosities; which would not only interrupt the public administration, but diffuse their poison through the other branches of government, through the states, and at length through the people at large. If the members were to be unequal in power, the principle of opposition to the unity was given up; if equal, the making them an odd number would not be a remedy. In courts of justice, there are two sides only to a question. In the legislative and executive departments, questions have commonly many sides. Each member, therefore, might espouse a separate one, and no two agree.

Mr. SHERMAN. This matter is of great importance, and ought to be well considered before it is determined. Mr. Wilson, he said, had observed that in each state a single magistrate was placed at the head of the government. It was so, he admitted, and properly so; and he wished the same policy to prevail in the federal government. But then it should be also remarked, that in all the states there was a council of advice, without which the first magistrate could not act.

A council he thought necessary to make the establishment acceptable to the people. Even in Great Britain, the king has a council; and though he appoints it himself, its advice has its weight with him, and attracts the confidence of the people.

Mr. WILLIAMSON asks Mr. Wilson whether he means to annex a council.

Mr. WILSON means to have no council, which oftener serves to cover than prevent mal-practices.

Mr. GERRY was at a loss to discover the policy of three members for the executive. It would be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. It would be a general with three heads.

On the question for a single executive, it was agreed to.

Massachusetts, Connecticut, Pennsylvania, Virginia, (Mr. Randolph and Mr. Blair no; Dr. M’Clurg, Mr. Madison, and General Washington, ay; Colonel Mason being no, but not in the House; Mr. Wythe, ay, but gone home,) North Carolina, South Carolina, Georgia, ay, 7; New York, Delaware, Maryland, no, 3. 89

The first clause of the eighth resolution, relating to a council of revision, was next taken into consideration.

Mr. GERRY doubts whether the judiciary ought to form a part of it, as they will have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done, too, with general approbation. It was quite foreign from the nature of their office to make them judges of the policy of public measures. He moves to postpone the clause, in order to propose, “that the national executive shall have a right to negative any legislative act which shall not be afterwards passed by—parts of each branch of the national legislature.”

Mr. KING seconded the motion, observing that the judges ought to be able to expound the law, as it should come before them, free from the bias of having participated in its formation.

Mr. WILSON thinks neither the original proposition nor the amendment goes far enough. If the legislature, executive, and judiciary, ought to be distinct and independent, the executive ought to have an absolute negative. Without such a self-defence, the legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the executive and judiciary jointly an absolute negative.

On the question to postpone, in order to take Mr. GERRY’S proposition into consideration, it was agreed to.

Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, Delaware, Maryland, Virginia, no, 4.

Mr. GERRY’S proposition being now before the committee, Mr. WILSON and Mr. HAMILTON move, that the last part of it (viz., “which shall not be afterwards passed by—parts of each branch of the national legislature”) be struck out, so as to give the executive an absolute negative on the laws. There was no danger, they thought, of such a power being too much exercised. It was mentioned by Col. HAMILTON that the king of Great Britain had not exerted his negative since the revolution.

Mr. GERRY sees no necessity for so great a control over the legislature, as the best men in the community would be comprised in the two branches of it.

Dr. FRANKLIN said, he was sorry to differ from his colleague, for whom he had a very great respect, on any occasion, but he could not help it on this. He had had some experience of this check in the executive on the legislature, under the proprietary government of Pennsylvania. The negative of the governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice to have orders in his favor, on the treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the governor in the means of self-defence could not be got till it was agreed that his estate should be exempted from taxation; so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischievous sort of check. If the executive was to have a council, such a power would be less objectionable. It was true, the king of Great Britain had not, as was said, exerted his negative since the revolution; but that matter was easily explained. The bribes and emoluments now given to the members of Parliament rendered it unnecessary, everything being done according to the will of the ministers. He was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last enough would be got to influence and bribe the legislature

into a complete subjection to the will of the executive.

Mr. SHERMAN was against enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the legislature.

Mr. MADISON supposed, that, if a proper proportion of each branch should be required to overrule the objections of the executive, it would answer the same purpose as an absolute negative. It would rarely, if ever, happen that the executive, constituted as ours is proposed to be, would have firmness enough to resist the legislature, unless backed by a certain part of the body itself. The king of Great Britain, with all his splendid attributes, would not be able to withstand the unanimous and eager wishes of both Houses of Parliament. To give such a prerogative would certainly be obnoxious to the temper of this country—its present temper at least.

Mr. WILSON believed, as others did, that this power would seldom be used. The legislature would know that such a power existed, and would refrain from such laws as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pennsylvania formerly was very different from its present case. The executive was not then, as now, to be appointed by the people. It will not in this case, as in the one cited, be supported by the head of a great empire, actuated by a different and sometimes opposite interest. The salary, too, is now proposed to be fixed by the Constitution, or, if Dr. Franklin’s idea should be adopted, all salary whatever interdicted. The requiring a large proportion of each House to overrule the executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the executive and legislative

branches, and in which the former ought to be able to defend itself.

Mr. BUTLER had been in favor of a single executive magistrate; but could he have entertained an idea that a complete 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 Great Britain. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the executive power. But why might not a Catiline or a Cromwell arise in this country as well as in others?

Mr. 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 control whatever. The two branches would produce a sufficient control 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 Dr. Franklin, 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 all these into his own hands, the American executive, like the British, will, by bribery and influence, save himself the trouble and odium of exerting his negative afterwards. We are, Mr. 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 government, 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 and 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 the extinction of an old, and the establishment of a new government, 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 enough 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 intrusted 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.

Dr. FRANKLIN. A gentleman from South Carolina, (Mr. Butler,) a day or two ago, called our attention to the case of the United Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that government. 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 and more oppressive, they were at length set aside. Still, however, there was a party for the Prince of Orange, which descended to his son; who excited insurrections, spilled 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, and make the stadtholdership hereditary. And the present stadtholder is ready to wade through 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 Pennsylvania, 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. Nobody 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 the executive an absolute negative,—

Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, 10. 90

Mr. BUTLER moved that the resolution be altered so as to read,

“Resolved, that the national executive have a power to suspend any legislative act for the term of—.”

Dr. FRANKLIN seconded the motion.

Mr. GERRY observed, that the power of suspending night do all the mischief dreaded from the negative of useful laws, without answering the salutary purpose of checking unjust or unwise ones.

On the question for giving this suspending power, all the states, to wit,

Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, were—no.

On a question for enabling two thirds of each branch of the legislature to overrule the provisionary check, it passed in the affirmative, sub silentio, and was inserted in the blank of Mr. Gerry’s motion.

On the question on Mr. Gerry’s motion, which gave the executive alone, without the judiciary, the revisionary control on the laws, unless overruled by two thirds of each branch,—

Massachusetts, New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 8; Connecticut, Maryland, no, 2.

It was moved by Mr. WILSON, seconded by Mr. MADISON, that the following amendment be made to the last resolution: after the words “national executive,” to add “and a convenient number of the national judiciary.”

An objection of order being taken by Mr. HAMILTON to the introduction of the last amendment at this time, notice was given by Mr. WILSON and Mr. MADISON, that the same would be moved to-morrow; whereupon Wednesday was assigned to reconsider the amendment of Mr. Gerry.

It was then moved and seconded to proceed to the consideration of the ninth resolution submitted by Mr. 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 and seconded 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. 91

The committee then rose, and the house adjourned.

TUESDAY, June 5.

Gov. Livingston, of New Jersey, took his seat.

In Committee of the Whole. —The words “one or more” were struck out before “inferior tribunals,” as an amendment to the last clause of the ninth resolution. The clause, “that the national judiciary be chosen by the national legislature,” being under consideration,—

Mr. WILSON opposed the appointment of judges by the national legislature. Experience showed the impropriety of such appointments 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.

Mr. RUTLEDGE 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.

Dr. FRANKLIN observed, that two modes of choosing 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 enough 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, and a blank left, to be hereafter filled on maturer reflection. Mr. WILSON seconds it. On the question for striking out,—

Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 9; Connecticut, South Carolina, no, 2. 92

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

Mr. PINCKNEY 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 the ninth resolution were agreed to, viz., “ to hold their offices during good behavior, and to receive punctually, at stated times, a fixed compensation for their services, in which no increase nor 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 the ninth resolution was postponed.

The tenth resolution was agreed to, viz., “ that provision ought to be made for the admission of states, lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole. ”

The eleventh resolution for guarantying to states republican government and territory, c., being read,—

Mr. PATTERSON 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 and South Carolina only voting against it.

The twelfth resolution, for continuing Congress till a given day, and for fulfilling their engagements, produced no debate.

On the question,

Massachusetts, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 8; Connecticut, Delaware, no, 2. (New Jersey omitted in the printed Journal.)

The thirteenth resolution, to the effect that provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the national legislature, being taken up,—

Mr. PINCKNEY doubted the propriety or necessity of it.

Mr. GERRY favored it. The novelty and difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the government. 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,—

Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, North Carolina, ay, 7; Virginia, South Carolina, Georgia, no, 3.

The fourteenth resolution, requiring oath from the state officers to support the national government, was postponed, after a short, uninteresting conversation; the votes,—

Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, ay, 6; New York, Pennsylvania, Delaware, North Carolina, no, 4; Massachusetts, divided.

The fifteenth resolution, for recommending conventions under appointment of the people, to ratify the new Constitution, c., being taken up,—

Mr. SHERMAN thought such a popular ratification unnecessary; the Articles of Confederation providing for changes and alterations, with the assent of Congress, and ratification of state legislatures.

Mr. MADISON thought this provision essential. The Articles of Confederation 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 Congress, 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.

Mr. GERRY observed, that in the Eastern States the Confederation 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 Massachusetts, and giving all the other powers of government to the other branch of the legislature.

Mr. KING supposed, that the last article of the Confederation 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 through it, than through 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.

Mr. 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. *

Mr. PINCKNEY hoped that, in case the experiment should not unanimously take place, nine states might be authorized to unite under the same government.

The fifteenth resolution was postponed, nem. con. 93

Mr. PINCKNEY and Mr. RUTLEDGE moved, that to-morrow be assigned to reconsider that clause of the fourth resolution which respects the election of the first branch of the national legislature; which passed in the affirmative.

Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, ay, 6; Massachusetts, New Jersey, North Carolina, South Carolina, Georgia, no, 5.

Mr. RUTLEDGE, having 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 ninth resolution 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 and uniformity of judgments; 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 seconded the motion.

Mr. 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 biased 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, though 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 and judiciary would be the mere trunk of a body, without arms or legs to act or move.

Mr. 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, and to a scene in which controversies with foreigners would be most likely to happen.

Mr. 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.

Mr. 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 Mr. RUTLEDGE’S motion to strike out “inferior tribunals,” it passed in the affirmative.

Connecticut, New York, New Jersey, North Carolina, South Carolina, Georgia, ay, 6; Pennsylvania, Delaware, Maryland, Virginia, no, 4; Massachusetts, divided.

Mr. WILSON and Mr. MADISON then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to the ninth resolution 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 to establish them. They repeated the necessity of some such provision.

Mr. 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 government he could devise, but the best they would receive.

Mr. KING remarked, as to the comparative expense, that the establishment of inferior tribunals would cost infinitely less than the appeals that would be prevented by them.

On this question, as moved by Mr. Wilson and Mr. Madison,—

Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 8; Connecticut, South Carolina, no, 2; New York, divided. 94 (In the printed Journal, New Jersey, no.)

The committee then rose, and the house adjourned.


In Committee of the Whole. —Mr. PINCKNEY, according to previous notice, and 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.

Mr. RUTLEDGE seconded the motion.

Mr. GERRY. 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 Massachusetts, the worst men get into the legislature. Several members of that body had lately been convicted of infamous crimes. Men of indigence, ignorance, and baseness, spare no pains, however dirty, to carry their point against

men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever against aristocracy and monarchy. It was necessary, on the one hand, that the people should appoint one branch of the government, 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 should make the appointment.

Mr. WILSON. He wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The government ought to possess, not only, first, the force, but second, 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 Mr. 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 government than to the state governments 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.

Mr. SHERMAN. If it were in view to abolish the state governments, the elections ought to be by the people. If the state governments are to be continued, it is necessary, in order to preserve harmony between the national and state governments, that the elections to the former should be made by the latter. The right of participating in the national government would be sufficiently secured to the people by their election of the state legislatures. The objects of the Union, he thought, were few,—first, defence against foreign danger; secondly, against internal disputes and a resort to force; thirdly, treaties with foreign nations; fourthly, regulating foreign commerce, and drawing revenue from it. These, and perhaps a few lesser objects, alone rendered a confederation of the states necessary. All other matters, civil and 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, and thereby be too subject to faction. Some others were, perhaps, too large, the powers of government not being able to pervade them. He was for giving the general government power to legislate and execute within a defined province.

Col. MASON. Under the existing Confederacy, Congress 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 government. The people will be represented: they ought therefore to choose the representatives. The requisites in actual representation are, that the representatives should sympathize with their constituents; should think as they think, and feel as they feel; and that for these purposes they should be residents among them. Much, he said, had been alleged against democratic elections. He admitted that much might be said; but it was to be considered that no government was free from imperfections and evils; and that improper elections, in many instances, were inseparable from republican governments. 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, would not send to the national legislature patrons of such projects, if the choice depended on them?

Mr. MADISON considered an election of one branch, at least, of the legislature by the people immediately, as a clear principle of free government; 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 government. 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 any thing 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 (Mr. Sherman) had admitted that, in a very small state, faction and oppression would 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, though less than in the smallest? And were we not thence admonished to enlarge the sphere as far as the nature of the government would admit? This was the only defence against the inconveniences of democracy consistent with the democratic form of government. All civilized societies would be divided into different sects, factions, and interests, as they happened to consist of rich and poor, debtors and 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 and oppression. These observations are verified by the histories of every country, ancient and modern. In Greece and Rome, the rich and poor, the creditors and debtors, as well as the patricians and plebeians, alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens, and Carthage, and their respective provinces! the former possessing the power, and the latter being sufficiently distinguished to be separate objects of it. Why was America so justly apprehensive of parliamentary injustice? Because Great Britain had a separate interest, real or supposed, and, if her authority had been admitted, could have pursued that interest at our expense. We have seen the mere distinction of color 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 government, the majority, if united, have always an opportunity. The only remedy is, to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that, in the first 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 second place, that, in case they should have such an interest, they may not be so 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, and in such a form, as will control all the evils which have been experienced.

Mr. DICKINSON considered it essential that one branch of the legislature should be drawn immediately from the people, and expedient that the other should be chosen by the legislatures of the states. This combination of the state governments with the national government 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 government, but for leaving the states a considerable agency in the system. The objection against making the former dependent on the latter might be obviated by giving to the Senate an authority permanent, and irrevocable for three, five, or seven years. Being thus independent, they will check and decide with uncommon freedom.

Mr. READ. Too much attachment is betrayed to the state governments. We must look beyond their continuance. A national government must soon of necessity swallow them all up. They will soon be reduced to the mere office of electing the national Senate. He was against patching up the old federal system: he hoped the idea would be dismissed. It would be like putting new cloth on an old garment. The Confederation was founded on temporary principles. It cannot last; it cannot be amended. If we do not establish a good government 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 general government. The aversion lies among interested men, who possess their confidence.

Mr. PIERCE was for an election by the people as to the first branch, and by the states as to the second branch; by which means the citizens of the states would be represented both individually and collectively.

Gen. PINCKNEY wished to have a good national government, and, 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 South Carolina, was totally impracticable. He differed from gentlemen who thought that a choice by the people would be a better guard against bad measures than by the legislatures. A majority of the people in South 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, and more ready to thwart the national government, if excluded from a participation in it. The idea of abolishing these legislatures would never go down.

Mr. WILSON would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the state governments ought to be abandoned. He saw no incompatibility between the national and state governments, provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated systems, ancient and modern, the reverse had happened; the generality being destroyed gradually by the usurpations of the parts composing it.

On the question for electing the first branch by the state legislatures, as moved by Mr. PINCKNEY, it was negatived.

Connecticut, New Jersey, South Carolina, ay, 3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, no, 8. 95

Mr. 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 reënforcing the executive with the influence of that department.

Mr. MADISON seconded the motion. He observed, that the great difficulty in rendering the executive competent to its own defence arose from the nature of republican government, which could not give to an individual citizen that settled preëminence in the eyes of the rest, that weight of property, that personal interest against 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 preëminent as to produce universal acquiescence. The executive magistrate would be envied and assailed by disappointed competitors: his firmness therefore would need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest, which would place him out of the reach of foreign corruption. He would stand in need, therefore, of being controlled as well as supported. An association of the judges in his revisionary function would both double the advantage and diminish the danger. It would also enable the judiciary department the better to defend itself against legislative encroachments. Two objections had been made: first, 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; secondly, that the judiciary department ought to be separate and distinct from the other great departments. The first objection had some weight; but it was much diminished by reflecting, that a small proportion of the laws coming in question before a judge would be such wherein he had been consulted; that a small part of this proportion would be so ambiguous as to leave room for his prepossessions; and that but a few cases would probably arise, in the life of a judge, under such ambiguous passages. How much good, on the other hand, would proceed from the perspicuity, the conciseness, and the systematic character, which the code of laws would receive from the judiciary talents. As to the second objection, it either had no weight, or it applied with equal weight to the executive, and 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 and from each other. There would, 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 coördinate 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.

Mr. GERRY thought the executive, whilst standing alone, would be more impartial than when he could be covered by the sanction, and seduced by the sophistry, of the judges.

Mr. 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.

Mr. PINCKNEY had been at first in favor of joining the heads of the principal departments, 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 against legislative usurpations on it. The purse and the sword ought never to get into the same hands, whether legislative or executive.

Mr. DICKINSON. Secrecy, vigor, and despatch are not the principal properties required 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.

Mr. WILSON remarked, that the responsibility required belonged to his executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.

96 Mr. WILLIAMSON was for substituting a clause requiring two thirds 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,—

Connecticut, New York, Virginia, ay, 3; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, 8.

Mr. PINCKNEY gave notice, that to-morrow he should move for the reconsideration of that clause, in the sixth resolution adopted by the committee, which vests a negative in the national legislature on the laws of the several states.

The committee rose, and the House adjourned.


In Committee of the Whole. —Mr. PINCKNEY, according to notice, moved to reconsider the clause respecting the negative on state laws, which was agreed to, and to-morrow fixed for the purpose.

The clause providing for the appointment of the second branch of the national legislature, having lain blank since the last vote on the mode of electing it,—to wit, by the first branch,—Mr. DICKINSON now moved, “that the members of the second branch ought to be chosen by the individual legislatures.”

Mr. SHERMAN seconded the motion; observing, that the particular states would thus become interested in supporting the national government, 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.

Mr. PINCKNEY. If the small states should be allowed one senator only, the number will be too great; there will be eighty at least.

Mr. DICKINSON had two reasons for his motion—first, because the sense of the states would be better collected through their governments than immediately from the people at large; secondly, 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 eighty, and twice eighty, 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.

Mr. WILLIAMSON preferred a small number of senators, but wished that each state should have at least one. He suggested twenty-five as a convenient number. The different modes of representation in the different branches will serve as a mutual check.

Mr. BUTLER was anxious to know the ratio of representation before he gave any opinion.

Mr. 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; and he moved to postpone the motion of Mr. Dickinson, in order to take up one of that import.

Mr. MORRIS seconded him.

Mr. 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.

Mr. 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, and 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 Mr. Dickinson, 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 numbers. 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 and pretensions at Rome; because the people, by reason of their numbers, could not act in concert, and 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.

Mr. GERRY. Four modes of appointing the Senate have been mentioned. First, by the first branch of the national legislature. This would create a dependence contrary to the end proposed. Secondly, by the national executive. This is a stride towards monarchy that few will think of. Thirdly, 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. Fourthly, by the individual legislatures. The elections being carried through this refinement, will be most like to provide some check in favor of the commercial interest against the landed; without which, oppression will take place; and no free government can last long where that is the case. He was therefore in favor of this last.

Mr. DICKINSON. * 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 Pennsylvania (Mr. 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 government would move in the same direction as the state governments now do, and would run into all the same mischiefs. The reform would only unite the thirteen 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 and other causes, would be increased thereby. He did not admit that the tribunes lost their weight in proportion as their number was augmented, and gave an historical sketch of this institution. If the reasoning (of Mr. Madison) was good, it would prove that the number of the Senate ought to be reduced below ten, the highest number of the tribunitial corps.

Mr. WILSON. The subject, it must be owned, is surrounded with doubts and difficulties. But we must surmount them. The British government 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 national government. On the contrary, he wished to keep them from devouring the national government. He was not, however, for extinguishing these planets, as was supposed by Mr. Dickinson; 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 would 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 would be most likely to obtain men of intelligence and uprightness; subdividing the districts only for the accommodation of voters.

Mr. MADISON could as little comprehend in what manner family weight, as desired by Mr. Dickinson, 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 would be made. If an election by the people, or through any other channel than the state legislatures, promised as uncorrupt and 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 through that channel than from the people through some other. The great evils complained of were, that the state legislatures ran into schemes of paper money, c., whenever solicited by the people, and 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 national legislature, without a proper check, will follow the example of the state legislatures, and, in the same breath, that the state legislatures are the only proper check.

Mr. SHERMAN opposed elections by the people, in districts, as not likely to produce such fit men as elections by the state legislatures.

Mr. GERRY insisted that the commercial and moneyed interest would 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 against it. In Massachusetts, the county conventions had declared a wish for a depreciating paper that would sink itself. Besides, in some states there are two branches in the legislature, one of which is somewhat aristocratic. There would, therefore, be so far a better chance of refinement in the choice. There seemed, he thought, to be three powerful objections against elections by districts. First, 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 would be unavoidable. Secondly, small states, forming part of the same district with a large one, or a large part of a large one, would have no chance of gaining an appointment for its citizens of merit. Thirdly, a new source of discord would be opened between different parts of the same district.

Mr. PINCKNEY thought the second branch ought to be permanent and independent; and that the members of it would be rendered more so by receiving their appointments from the state legislatures. This mode would avoid the rivalships and discontents incident to the election by districts. He was for dividing the states in three classes, according to their respective sizes, and for allowing to the first class three members; to the second, two; and to the third, one.

On the question for postponing Mr. Dickinson’s motion, referring the appointment of the Senate to the state legislatures, in order to consider Mr. Wilson’s, for referring it to the people,—

Pennsylvania, ay, 1; Massachusetts, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, 10.

Col. MASON. Whatever power may be necessary for the national government, a certain portion must necessarily be left with the states. It is impossible for one power to pervade the extreme parts of the United States, so as to carry equal justice to them. The state legislatures, also, ought to have some means of defending themselves against encroachments of the national government. In every other department, we have studiously endeavored 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 national establishment? There is danger on both sides, no doubt; but we have only seen the evils arising on the side of the state governments. Those on the other side remain to be displayed. The example of Congress does not apply. Congress had no power to carry their acts into execution, as the national government will have.

On Mr. DICKINSON’S motion for an appointment of the Senate by the state legislatures,—

Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 10. 97

Mr. GERRY gave notice, that he would to-morrow move for a re-consideration of the mode of appointing the national executive, in order to substitute an appointment by the state executives.

The committee rose, and the House adjourned.

FRIDAY, June 8.

In Committee of the Whole. —On a reconsideration of the clause giving the national legislature a negative on such laws of the states as might be contrary to the Articles of Union, or treaties with foreign nations,—

Mr. PINCKNEY moved, “that the national legislature should have authority to negative all laws which they should 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 would 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 government; that, under the British government, the negative of the crown had been found beneficial, and the states are more one nation now than the colonies were then.

Mr. 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 and 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 would be 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 against Massachusetts, abetted, perhaps, by several of her neighbors? It would 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 government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the states, would prove as visionary and fallacious as the government of Congress. The negative would render the use of force unnecessary. The states could 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 would 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 government is the great pervading principle that must control the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits, and destroy the order and harmony of the political system.

Mr. WILLIAMSON was against giving a power that might restrain the states from regulating their internal police.

Mr. GERRY could not see the extent of such a power, and was against every power that was not necessary. He thought a remonstrance against unreasonable acts of the states would restrain them. If it should 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 among the exclusive powers of Congress. He observed, that the proposed negative would extend to the regulations of the militia—a matter on which the existence of the state might depend. The national 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 enough 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?

Mr. 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 should be made for that purpose.

Mr. 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 and steady eye, is right. There is no instance in which the laws say that the individual should be bound in one case, and at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual persons 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 national government? Among the first sentiments expressed in the first Congress, one was, that Virginia is no more, that Massachusetts is no more, that Pennsylvania is no more, c.;—we are now one nation of brethren;—we must bury all local interests and distinctions. This language continued for some time. The tables at length began to turn. No sooner were the state governments formed than their jealousy and ambition began to display themselves. Each endeavored 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 through Congress, and compare the first and last draught of it. To correct its vices is the business of this Convention. One of its vices is the want of an effectual control 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?

Mr. DICKINSON deemed it impossible to draw a line between the cases proper, and 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 national government, 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.

Mr. BEDFORD, in answer to his colleague’s question, where would 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 one ninetieth for its share in the general councils; whilst Pennsylvania and Virginia would possess one third 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 shows the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle 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 Pennsylvania and Virginia, by the conduct of their deputies, wished to provide a system in which they would have an enormous and 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?

Mr. 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 national government 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 and expensive branch, therefore, might not be obliged to sit constantly. He asked Mr. Bedford, what would be the consequence to the small states of a dissolution of the Union, which 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 and ambition with which they were charged, would the small ones in their neighborhood be more secure when all control of a general government was withdrawn?

Mr. BUTLER was vehement against 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 Mr. Pinckney and Mr. Madison,—

Massachusetts, Pennsylvania, Virginia, (Mr. Randolph and Mr. Mason, no; Mr. Blair, Dr. M’Clurg, and Mr. Madison, ay; Gen. Washington not consulted,) ay, 3; Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina,

Georgia, no, 7; Delaware, divided, (Mr. Read and Mr. Dickinson, ay; Mr. Bedford and Mr. Basset, no.) 98

On motion of Mr. GERRY and Mr. KING, to-morrow was assigned for reconsidering the mode of appointing the national executive; the reconsideration being voted for by all the states except Connecticut and North Carolina.

Mr. PINCKNEY and Mr. RUTLEDGE moved to add to the fourth resolution, agreed to by the committee, the following, viz.: “that the states be divided into three classes; the first class to have three members, the second two, and the third one member, each; than 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.


Mr. Luther Martin, from Maryland, took his seat.

In Committee of the Whole. —Mr. 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 appointment should be made by the national legislature, it would lessen that independence of the executive which ought to prevail; would give birth to intrigue and corruption between the executive and 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 national government: the first branch being chosen by the people of the states, and the second by the legislatures of the states, he did not see any objection against 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.

Mr. RANDOLPH urged strongly the inexpediency of Mr. Gerry’s mode of appointing the national executive. The confidence of the people would not be secured by it to the national magistrate. The small states would lose all chance of an appointment 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 national executive thus chosen will not be likely to defend with becoming vigilance and firmness the national rights against state encorachments. Vacancies also must happen. How can these be filled? He could not suppose, either, that the executives would feel the interest in supporting the national 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 national executive to the state executives, as proposed by Mr. Gerry,—

Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no, 9; Delaware, divided. 99

Mr. PATTERSON moved, that the committee resume the clause relating to the rule of suffrage in the national legislature.

Mr. BREARLY seconds him. He was sorry, he said, that any question on this point was brought into view. It had been much agitated in Congress 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  Congress, Virginia would have sixteen votes, and Georgia but one. A like proportion to the others will make the whole number ninety. There will be three large states, and ten small ones. The large states, by which he meant Massachusetts, Pennsylvania, and Virginia, will carry every thing before them. It had been admitted, and was known to him from facts within New Jersey, that where large and small counties were united into a district for electing representatives for the district, the large counties always carried their point, and consequently the large states would do so. Virginia 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 Virginia? He would not say it was. What remedy, then? One only: that a map of the United States be spread out, that all the existing boundaries be erased, and that a new partition of the whole be made into thirteen equal parts.

Mr. PATTERSON considered the proposition for a proportional representation as striking at the existence of the lesser states. He would 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 Congress; that this act was recited in several of the commissions, particularly that of Massachusetts, 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; that we ought to keep within its limits, or we should be charged by our constituents with usurpation; that the people of America were sharp-sighted, 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 government, 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, and sovereignty supposes equality. If we are to be considered as a nation, all state distinctions must be abolished, the whole must be thrown into botchpot, and when an equal division is made, then there may be fairly an equality of representation. He held up Virginia, Massachusetts, and Pennsylvania, as the three large states, and the other ten as small ones; repeating the calculations of Mr. Brearly, as to the disparity of votes which would 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 ratable property of A was to that of B as forty to one, ought A, for that reason, to have forty 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 with B, so he ought to contribute more for the common protection. The same may be said of a large state, which 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, and some others, that America should be represented in the British Parliament, and then be bound by its laws. America could not have been entitled to more than one third of the representatives which would fall to the share of Great Britain: would American rights and interests have been safe under an authority thus constituted? It has been said that, if a national government 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 choose 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 choose 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 by Mr. 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. New 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.

Mr. WILSON hoped, if the Confederacy should be dissolved, that a majority, —nay, 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 number 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 and B, stated by Mr. 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 was to form the ratio, it would be the same. Mr. Patterson admitted persons, not property, to be the measure of suffrage. Are not the citizens of Pennsylvania equal to those of New Jersey? Does it require one hundred and fifty of the former to balance fifty 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, Pennsylvania, and 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 cannot. As little can a sovereign state, when it becomes a member of a federal government. If New Jersey will not part with her sovereignty, it is vain to talk of government. A new partition of the states is desirable, but evidently and totally impracticable.

Mr. 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, Mr. PATTERSON hoped that, as so much depended on it, it might be thought best to postpone the decision till to-morrow; which was done, nem. con.

The committee rose, and the House adjourned.

MONDAY, June 11.

Mr. Abraham Baldwin, from Georgia, took his seat.

In Committee of the Whole. —The clause concerning the rule of suffrage in the national legislature, postponed on Saturday, was resumed.

Mr. SHERMAN proposed, that the proportion of suffrage in the first 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.

Mr. RUTLEDGE proposed, that the proportion of suffrage in the first branch should be according to the quotas of contribution. The justice of this rule, he said, could not be contested. Mr. BUTLER urged the same idea; adding, that money was power; and that the states ought to have weight in the government in proportion to their wealth.

Mr. KING and Mr. WILSON, 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. [In the printed Journal, Mr. RUTLEDGE is named as the seconder of the motion.]

Mr. DICKINSON contended for the actual contributions of the states, as the rule of their representation and suffrage in the first branch. By thus connecting the interests of the states with their duty, the latter would be sure to be performed.

Mr. 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 Connecticut and New Jersey, would be in a bad situation, indeed. It might so happen that they would have no representation. This situation of particular states had been always one powerful argument in favor of the five percent. impost.

The question being about to be put, Dr. FRANKLIN said, he had thrown his ideas of the matter on a paper; which 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 and 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 and division, in a great concern wherein harmony and union are extremely necessary to give weight to our councils, and render them effectual in promoting and 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, and 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 should 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 and 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 and 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 seven smaller states had each three members in the House, and the six larger to have, one with another, six 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, affirmatives, 14, negatives 43.

“It is, then, apparent, that the fourteen carry the question against the forty-three, 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 and 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 New 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 frequently occasion 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 five 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 and resisted. These 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 (Mr. 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 the sixth of September, 1774. The words are,—

“ ‘Resolved, That, in determining questions in this Congress, each colony or province shall have one vote; the Congress not being possessed of, or at present able to procure, materials for ascertaining the importance of each colony.’ ”

On the question for agreeing to Mr. King’s and Mr. Wilson’s motion, it passed in the affirmative.

Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3; Maryland, divided.

It was then moved by Mr. RUTLEDGE, seconded by Mr. 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 Mr. WILSON, seconded by Mr. PINCKNEY, 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 and other free citizens and inhabitants of every age, sex, and 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 five, seven, or ten years.

Mr. GERRY thought property not the rule of representation. Why, then, should the blacks, who were property in the south, be, in the rule of representation, more than the cattle and horses of the north?

On the question,—

Massachusetts, Connecticut, New York, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 9; New Jersey, Delaware, no, 2. 100

Mr. SHERMAN moved, that a question be taken, whether each state shall have one vote in the second 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.

Mr. ELLSWORTH seconded the motion. On the question for allowing each state one vote in the second branch,—

Connecticut, New York, New Jersey, Delaware, Maryland, ay, 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 6.

Mr. WILSON and Mr. HAMILTON moved, that the right of suffrage in the second branch ought to be according to the same rule as in the first branch.

On this question for making the ratio of representation the same in the second as in the first branch, it passed in the affirmative.

Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, Delaware, Maryland, no, 5. 101

The eleventh resolution, for guarantying republican government and territory to each state, being considered, the words “or partition” were, on motion of Mr. MADISON, added after the words “voluntary junction.”

Massachusetts, New York, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; Connecticut, New Jersey, Delaware, Maryland, no, 4.

Mr. READ disliked the idea of guarantying territory. It abetted the idea of distinct states, which 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, and its existing laws, ought to be guarantied to each state by the United States,” the whole was agreed to, nem. con.

The thirteenth resolution, for amending the national Constitution, hereafter, without consent of the national legislature, being considered, several members did not see the necessity of the resolution at all, nor the propriety of

making the consent of the national legislature 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 national legislature, because they may abuse their power, and refuse their assent on that

very account. The opportunity for such an abuse may be the fault of the Constitution calling for amendment.

Mr. RANDOLPH enforced these arguments.

The words “without requiring the consent of the national legislature,” were postponed. The other provision in the clause passed, nem. con. 102

The fourteenth resolution, requiring oaths from the members of the state governments to observe the national Constitution and laws, being considered,—

Mr. SHERMAN opposed it, as unnecessarily intruding into the state jurisdictions.

Mr. RANDOLPH considered it necessary to prevent that competition between the national Constitution and laws, and 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 national government. The national authority needs every support we can give it. The executive and 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 national system, they will always lean too much to the state systems, whenever a contest arises between the


Mr. GERRY did not like the clause. He thought there was as much reason for requiring an oath of fidelity to the states from national officers, as vice versa.

Mr. 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,—

Connecticut, New Jersey, Delaware, Maryland, ay, 4; Massachusetts, New York, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 7.

Question on the whole resolution, as proposed by Mr. Randolph,—

Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, Delaware, Maryland, no, 5. 103

The committee rose, and the House adjourned.

TUESDAY, June 12


In Committee of the Whole. —The question was taken on the fifteenth resolution, to wit, referring the new system to the people of the United States for ratification. It passed in the affirmative.

Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, no, 3; Delaware, Maryland, divided. (Pennsylvania omitted in the printed Journal. The vote is there entered as of

June 11.) 104

Mr. SHERMAN and Mr. ELLSWORTH moved to fill the blank left in the fourth 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.

Mr. RUTLEDGE proposed “every two years.”

Mr. JENIFER proposed “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.

Mr. 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 and from, the seat of national


Mr. 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 against tyranny. He was as much against a triennial house, as against an hereditary executive.

Mr. MADISON observed, that, if the opinions of the people were to be our guide, it would 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 and lights possessed by the members here; and still less, what would be their way of thinking six or twelve months hence. We ought to consider what was right

and necessary in itself for the attainment of a proper government. 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 and respectable citizens will be its advocates. Should we fall short of the necessary and 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.

Mr. 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, though 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 first branch,—

New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, ay, 7; Massachusetts, (Mr. King, ay, Mr. Gorham, wavering,) Connecticut, North Carolina, South Carolina, no. 4. 105

The words requiring members of the first branch to be of the age of—years, were struck out—Maryland alone, no.

The words “ liberal compensation for members ” being considered, Mr. MADISON moved to insert the words “and fixed.” He observed, that it would be improper to leave the members of the national legislature to be provided for by the state

legislatures, 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. First, 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; secondly, 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 fixed,”—

New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 8; Massachusetts, Connecticut, South Carolina, no, 3.

Dr. FRANKLIN 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 Mr. PIERCE, that the wages should be paid out of the national treasury,—

Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 8; Connecticut, New York, South Carolina, no, 3.

Question on the clause relating to term of service and compensation of the first branch,—

Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 8; Connecticut, New York, South Carolina, no, 3.

On a question for striking out the “ ineligibility of members of the national legislature to state offices, ”—

Connecticut, New York, North Carolina, South Carolina, ay, 4; New Jersey, Pennsylvania, Delaware, Virginia, Georgia, no, 5; Massachusetts, Maryland, divided.

On the question for agreeing to the clause as amended,—

Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 10; Connecticut, no, 1.

On the question for making members of the national legislature ineligible to any office under the national government for the term of three years after ceasing to be members,—

Maryland, ay, 1; Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, 10.

On the question for such ineligibility for one year,—

Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, ay, 8; New York, Georgia, no, 2; Maryland, divided.

On the question moved by Mr. Pinckney, for striking out “incapable of reëlection into the first branch of the national legislature for—years, and subject to recall,” agreed to, nem. con. 106

On the question for striking out from the fifth resolution the words requiring members of the senatorial branch to be of the age of—years at least,—

Connecticut, New Jersey, Pennsylvania, ay, 3; Massachusetts, New York, Delaware, Maryland, Virginia, South Carolina, no, 6; North Carolina, Georgia, divided.

On the question for filling the blank with “thirty years,” as the qualification, it was agreed to,—

Massachusetts, New York, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, ay, 7; Connecticut, New Jersey, Delaware, Georgia, no, 4.

Mr. SPAIGHT moved to fill the blank for the duration of the appointments to the second branch of the national legislature with the words “seven years.”

Mr. SHERMAN thought seven years too long. He grounded his opposition, he said, on the principle that, if they did their duty well, they would be reëlected; and if they acted amiss, an earlier opportunity should be allowed for getting

rid of them. He preferred five years, which would be between the terms of the first branch and of the executive.

Mr. PIERCE proposed three years. Seven years would raise an alarm. Great mischiefs have arisen in England from their septennial act, which was reprobated by most of their patriotic statesmen.

Mr. RANDOLPH was for the term of seven years. The democratic licentiousness of the state legislatures proved the necessity of a firm Senate. The object of this second branch is to control the democratic branch of the national

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 and independence may be the more necessary, also, in this branch, as it

ought to guard the Constitution against encroachments of the executive, who will be apt to form combinations with the demagogues of the popular branch.

Mr. MADISON considered seven years as a term by no means too long. What we wished was, to give to the government that stability which was every where called for, and which the enemies of the republican form alleged 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 Maryland created just suspicions of danger from it. In some instances, perhaps, it

may have erred by yielding to the House of Delegates. In every instance of their opposition to the measures of the House of Delegates, 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 four years, the institution was found to be no check whatever against

the instabilities of the other branches. He conceived it to be of great importance that a stable and firm government, 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 government by the 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 second branch,—

New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 8; Connecticut, no, 1; Massachusetts, (Mr. Gorham and Mr. King, ay; Mr. Gerry and Mr. Strong, no;) New York, divided. 107

Mr. BUTLER and Mr. RUTLEDGE proposed that the members of the second branch should be entitled to no salary or compensation for their services. On the question,— *

Connecticut, Delaware, South Carolina, ay, 3; New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, no, 7; Massachusetts, divided.

It was then moved, and agreed, that the clauses respecting the stipends and inelegibility of the second branch be the same as of the first branch,—Connecticut disagreeing to the ineligibility. It was moved and seconded to alter the

ninth resolution, so as to read, “that the jurisdiction of the supreme tribunal shall be, to hear and determine, in the dernier resort, all piracies, felonies, c.”

It was moved and seconded to strike out “all piracies and felonies on the high seas,” which was agreed to.

It was moved, and agreed, to strike out “all captures from an enemy.”

It was moved, and agreed, to strike out “other states,” and insert “two distinct states of the Union.”

It was moved, and agreed, to postpone the consideration of the ninth resolution, relating to the judiciary.

The committee then rose, and the house adjourned.



In the Committee of the Whole. —The ninth resolution being resumed,—

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

Mr. RANDOLPH and Mr. 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.” Agreed to. 108

Mr. PINCKNEY and Mr. SHERMAN moved to insert, after the words “one supreme tribunal,” the words “the judges of which to be appointed by the national legislature.”

Mr. MADISON objected to an appointment by the whole legislature. Many of them are 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 and more

select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.

Mr. Sherman and Mr. Pinckney withdrew their motion, and the appointment by the Senate was agreed to, nem. con.

Mr. 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 would repeat the experiment, till chance should furnish a set of representatives in the other branch who will fall into their snares.

Mr. 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 House 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.

Mr. MADISON observed, that the commentators on the British constitution had not yet agreed on the reason of the restriction on the House of Lords, 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 first branch. If they should 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 set of men, it would 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 would be equivalent to a distinct proposition of it.

Mr. KING differed from Mr. Gerry, and concurred in the objections to the proposition.

Mr. READ favored the proposition, but would not extend the restraint to the case of amendments.

Mr. PINCKNEY thinks the question premature. If the Senate should be formed on the same proportional representation as it stands at present, they should have equal power; otherwise, if a different principle should be introduced.

Mr. SHERMAN. As both branches must concur, there can be no danger, whichever way the Senate may 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 Connecticut, both branches can originate, in all cases, and it has been found safe and

convenient. Whatever might have been the reason of the rule as to the House of Lords, it is clear that no good arises from it now even there.

Gen. PINCKNEY. This distinction prevails in South Carolina, and has been a source of pernicious disputes between the two branches. The constitution is now evaded by informal schedules of amendments, handed from the Senate to the other


Mr. WILLIAMSON wishes for a question, chiefly to prevent rediscussion. The restriction will have one advantage: it will oblige some member in the lower branch to move, and people can then mark him.

On the question for excepting money bills, as proposed by Mr. Gerry,—

New York, Delaware, Virginia, ay, 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, no, 7. 109

The committee rose, and Mr. GORHAM made report, which was postponed till to-morrow, to give an opportunity for other plans to be proposed: the report was in the words following:—

1. Resolved, That it is the opinion of this committee, that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

2. Resolved, That the national legislature ought to consist of two branches.

3. Resolved, 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 the 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 United 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. Resolved, That the members of the second branch of the national legislature ought to be chosen by the individual legislatures; to be of the age of thirty years at least; to hold their offices for a term sufficient to insure their

independence, namely, seven years; to receive fixed stipends by which they may be compensated for the devotion of their time to the 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 United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and, under the national government, for the space of one year after

its expiration.

5. Resolved, That each branch ought to possess the right of originating acts.

6. Resolved, That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover, to legislate in all cases to which the separate states are incompetent, or in which

the harmony of the United States 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. Resolved, That the rights 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;

namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex, and 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.

8. Resolved, That the right of suffrage in the second 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 national 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, and to be removable 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 the public service, to be paid out of the national treasury.

10. Resolved, That the national executive shall have a right to negative any legislative act which shall not be afterwards passed by two thirds of each branch of the national legislature.

11. Resolved, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature, to hold their offices during good behavior, 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.

12. Resolved, That the national legislature be empowered to appoint inferior tribunals.

13. Resolved, That the jurisdiction of the national judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and


14. Resolved, That provision ought to be made for the admission of states lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a

number of voices in the national legislature less than the whole.

15. Resolved, That provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their


16. Resolved, That a republican constitution, and its existing laws, ought to be guarantied to each state by the United States.

17. Resolved, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.

18. Resolved, That the legislative, executive, and judiciary powers, within the several states, ought to be bound by oath to support the Articles of Union.

19. Resolved, That the amendments which shall be offered to the Confederation by the Convention, ought, at a proper time or times after the approbation of Congress, 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. 110



Mr. PATTERSON observed to the Convention, that it was the wish of several deputations, particularly that of New Jersey, that further time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to

digest one purely federal, and contradistinguished from the reported plan. He said, they hoped to have such a one ready by to-morrow to be laid before the Convention: and the Convention adjourned, that leisure might be given for the


FRIDAY, June 15


In Convention. —Mr. PATTERSON laid before the Convention the plan which, he said, several of the deputations wished to be substituted in place of that proposed by Mr. Randolph. After some little discussion of the most proper mode of

giving it a fair deliberation, it was agreed, that it should be referred to a Committee of the Whole; and that, in order to place the two plans in due comparison, the other should be recommitted. At the earnest request of Mr. Lansing,

and some other gentleman, it was also agreed that the Convention should not go into Committee of the Whole on the subject till to-morrow; by which delay the friends of the plan proposed by Mr. Patterson would be better prepared to

explain and support it, and all would have an opportunity of taking copies. *

The propositions from New Jersey, moved by Mr. Patterson, were in the words following:

1. Resolved, That the Articles of Confederation ought to be so revised, corrected and enlarged, as to render the federal Constitution adequate to the exigencies of government, and the preservation of the Union.

2. Resolved, That, in addition to the powers vested in the United States in Congress by the present existing Articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or

merchandises of foreign growth or manufacture, imported into any part of the United States; by stamps on paper, vellum, or parchment; and by a postage on all letters or packages passing through the general post-office;—to be applied to

such federal purposes as they shall deem proper and expedient; to make rules and regulations for the collection thereof; and the same, from time to time, to alter and amend in such manner as they shall think proper: to pass acts for

the regulation of trade and commerce, as well with foreign nations as with each other;—provided that all punishments, fines, forfeitures, and penalties, to be incurred for contravening such acts, rules, and regulations, shall be

adjudged by the common-law judiciaries of the state in which any offence contrary to the true intent and meaning of such acts, rules, and regulations, shall have been committed or perpetrated, with liberty of commencing in the first

instance all suits and prosecutions for that purpose in the superior common-law judiciary in such state; subject, nevertheless, for the correction of all errors, both in law and fact, in rendering judgment, to an appeal to the

judiciary of the United States.

3. Resolved, That whenever requisitions shall be necessary, instead of the rule for making requisitions mentioned in the Articles of Confederation, the United States in Congress be authorized to make such requisitions in proportion to

the whole number of white and other free citizens and inhabitants, of every age, sex, and 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; that, if such requisitions he not complied with in the time specified therein, to direct the collection thereof in the non-complying states, and for that purpose to devise and pass acts

directing and authorizing the same;—provided, that none of the powers hereby vested in the United States in Congress shall be exercised without the consent of at least—states; and in that proportion, if the number of confederated

states should hereafter be increased or diminished.

4. Resolved, That the United States in Congress be authorized to elect a federal executive, to consist of—persons; to continue in office for the term of—years; to receive punctually, at stated times, a fixed compensation for their

services, in which no increase nor diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution; to be paid out of the federal treasury: to be incapable of holding any other

office or appointment during their time of service, and for—years thereafter; to be ineligible a second time, and removable by Congress, on application by a majority of the executives of the several states: that the executive, besides

their general authority to execute the federal acts, ought to appoint all federal officers not otherwise provided for, and to direct all military operations;—provided, that none of the persons composing the federal executive shall, on

any occasion, take command of any troops, so as personally to conduct any military enterprise, as general, or in any other capacity.

5. Resolved, That a federal judiciary be established, to consist of a supreme tribunal, the judges of which to be appointed by the executive, and to hold their offices during good behavior; to receive punctually, at stated times, a

fixed compensation for their services, in which no increase nor diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. That the judiciary so established shall have authority

to hear and determine, in the first instance, on all impeachments of federal officers, and, by way of appeal, in the dernier resort, in all cases touching the rights of ambassadors; in all cases of captures from an enemy; in all cases

of piracies and felonies on the high seas; in all cases in which foreigners may be interested; in the construction of any treaty or treaties, or which may arise on any of the acts for the regulation of trade, or the collection of the

federal revenue: that none of the judiciary shall, during the time they remain in office, be capable of receiving or holding any other office or appointment during their term of service, or for—thereafter.

6. Resolved, That all acts of the United States in Congress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the

United States, shall be the supreme law of the respective states, so far forth as those acts or treaties shall relate to the said states or their citizens; and that the judiciary of the several states shall be bound thereby in their

decisions, any thing in the respective laws of the individual states to the contrary notwithstanding; and that if any state, or any body of men in any state, shall oppose or prevent the carrying into execution such acts or treaties,

the federal executive shall be authorized to call forth the power of the confederated states, or so much thereof as may be necessary, to enforce and compel an obedience to such acts, or an observance of such treaties.

7. Resolved, That provision be made for the admission of new states into the Union.

8. Resolved, That the rule for naturalization ought to be the same in every state.

9. Resolved, That a citizen of one state, committing an offence in another state of the Union, shall be deemed guilty of the same offence as if it had been committed by a citizen of the state in which the offence was committed. *111




In Committee of the Whole, on the resolutions proposed by Mr. Patterson and Mr. Randolph, Mr. LANSING called for the reading of the first resolution of each plan, which he considered as involving principles directly in contrast. That

of Mr. Patterson, says he, sustains the sovereignty of the respective states, that of Mr. Randolph destroys it. The latter requires a negative on all the laws of the particular states, the former only certain general power for the

general good. The plan of Mr. Randolph, in short, absorbs all power, except what may be exercised in the little local matters of the states, which are not objects worthy of the supreme cognizance. He grounded his preference of Mr.

Patterson’s plan, chiefly, on two objections to that of Mr. Randolph,—first, want of power in the Convention to discuss and propose it; secondly, the improbability of its being adopted.

1. He was decidedly of opinion that the power of the Convention was restrained to amendments of a federal nature, and having for their basis the Confederacy in being. The acts of Congress, the tenor of the acts of the states, the

commissions produced by the several deputations, all proved this. And this limitation of the power to an amendment of the Confederacy marked the opinion of the states, that it was unnecessary and improper to go farther. He was sure

that this was the case with his state. New York would never have concurred in sending deputies to the Convention, if she had supposed the deliberations were to turn on a consolidation of the states, and a national government.

2. Was it probable that the states would adopt and ratify a scheme which they had never authorized us to propose, and which so far exceeded what they regarded as sufficient? We see by their several acts, particularly in relation to the

plan of revenue proposed by Congress in 1783, not authorized by the Articles of Confederation, what were the ideas they then entertained. Can so great a change be supposed to have already taken place? To rely on any change which is

hereafter to take place in the sentiments of the people, would be trusting to too great an uncertainty. We know only what their present sentiments are; and it is in vain to propose what will not accord with these. The states-will never

feel a sufficient confidence in a general government, to give it a negative on their laws. The scheme is itself totally novel. There is no parallel to it to be found. The authority of Congress is familiar to the people, and an

augmentation of the powers of Congress will be readily approved by them.

Mr. PATTERSON said, as he had on a former occasion given his sentiments on the plan proposed by Mr. Randolph, he would now, avoiding repetition as much as possible, give his reasons in favor of that proposed by himself. He preferred it

because it accorded,—first, with the powers of the convention; secondly, with the sentiments of the people. If the Confederacy was radically wrong, let us return to our states, and obtain larger powers, not assume them ourselves. I

came here not to speak my own sentiments, but the sentiments of those who sent me. Our object is not such a government as may be best in itself, but such a one as our constituents have authorized us to prepare, and as they will

approve. If we argue the matter on the supposition that no confederacy at present exists, it cannot be denied that all the states stand on the footing of equal sovereignty. All, therefore, must concur before any can be bound. If a

proportional representation be right, why do we not vote so here? If we argue on the fact that a federal compact actually exists, and consult the articles of it, we still find an equal sovereignty to be the basis of it. [He reads the

fifth Article of the Confederation, giving each state a vote; and the thirteenth, declaring that no alteration shall be made without unanimous consent.] This is the nature of all treaties. What is unanimously done, must be unanimously

undone. It was observed, (by Mr. Wilson,) that the larger states gave up the point, not because it was right, but because the circumstances of the moment urged the concession. Be it so. Are they for that reason at liberty to take it

back? Can the donor resume his gift without the consent of the donee? This doctrine may be convenient, but it is a doctrine that will sacrifice the lesser states. The larger states acceded readily to the Confederacy. It was the small

ones that came in reluctantly and slowly. New Jersey and Maryland were the two last; the former objecting to the want of power in Congress over trade; both of them to the want of power to appropriate the vacant territory to the benefit

of the whole. If the sovereignty of the states is to be maintained, the representatives must be drawn immediately from the states, not from the people; and we have no power to vary the idea of equal sovereignty. The only expedient that

will cure the difficulty is that of throwing the states into hotchpot. To say that this is impracticable, will not make it so. Let it be tried, and we shall see whether the citizens of Massachusetts, Pennsylvania, and Virginia, accede

to it. It will be objected, that coercion will be impracticable. But will it be more so in one plan than the other? Its efficacy will depend on the quantum of power collected, not on its being drawn from the states, or from the

individuals; and, according to his plan, it may be exerted on individuals as well as according to that of Mr. Randolph. A distinct executive and judiciary also were equally provided by his plan. It is urged, that two branches in the

legislature are necessary. Why? For the purpose of a check. But the reason for the precaution is not applicable to this case. Within a particular state, where party heats prevail, such a check may be necessary. In such a body as

Congress, it is less necessary; and, besides, the delegations of the different states are checks on each other. Do the people at large complain of Congress? No. What they wish is, that Congress may have more power. If the power now

proposed be not enough, the people hereafter will make additions to it. With proper powers Congress will act with more energy and wisdom than the proposed national legislature; being fewer in number, and more secreted and refined by

the mode of election. The plan of Mr. Randolph will also be enormously expensive. Allowing Georgia and Delaware two representatives each in the popular branch, the aggregate number of that branch will be one hundred and eighty. Add to

it half as many for the other branch, and you have two hundred and seventy members, coming once, at least, a year, from the most distant as well as the most central parts of the republic. In the present deranged state of our finances,

can so expensive a system be seriously thought of? By enlarging the powers of Congress, the greatest part of this expense will be saved, and all purposes will be answered. At least, a trial ought to be made.

Mr. WILSON entered into a contrast of the principal points of the two plans, so far, he said, as there had been time to examine the one last proposed. These points were,—1. In the Virginia plan there are two, and in some degree three,

branches in the legislature; in the plan from New Jersey, there is to be a single legislature only. 2. Representation of the people at large is the basis of one; the state legislatures the pillars of the other. 3. Proportional

representation prevails in one, equality of suffrage in the other. 4. A single executive magistrate is at the head of the one; a plurality is held out in the other. 5. In the one, a majority of the people of the United States must

prevail; in the other, a minority may prevail. 6. The national legislature is to make laws in all cases to which the separate states are incompetent, c.; in place of this, Congress are to have additional power in a few cases only. 7. A

negative on the laws of the states; in place of this, coercion to be substituted. 8. The executive to be removable on impeachment and conviction, in one plan; in the other, to be removable at the instance of a majority of the

executives of the states. 9. Revision of the laws provided for, in one; no such check in the other. 10. Inferior national tribunals, in one; none such in the other. 11. In the one, jurisdiction of national tribunals to extend, c.; an

appellate jurisdiction only allowed in the other. 12. Here, the jurisdiction is to extend to all cases affecting the national peace and harmony; there, a few cases only are marked out. 13. Finally, the ratification is, in this, to be

by the people themselves; in that, by the legislative authorities, according to the thirteenth Article of the Confederation.

With regard to the power of the Convention, he conceived himself authorized to conclude nothing, but to be at liberty to propose any thing. In this particular, he felt himself perfectly indifferent to the two plans.

With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved were commonly mistaken for the general voice. He could not persuade himself that

the state governments and sovereignties were so much the idols of the people, nor a national governernment so obnoxious to them, as some supposed. Why should a national government be unpopular? Has it less dignity? Will each citizen

enjoy under it less liberty or protection? Will a citizen of Delaware be degraded by becoming a citizen of the United States? Where do the people look at present for relief from the evils of which they complain? Is it from an internal

reform of their governments? No, sir. It is from the national councils that relief is expected. For these reasons, he did not fear that the people would not follow us into a national government; and it will be a further recommendation

of Mr. Randolph’s plan, that it is to be submitted to them, and not to the legislatures, for ratification.

Proceeding now to the first point on which he had contrasted the two plans, he observed, that, anxious as he was for some augmentation of the federal powers, it would be with extreme reluctance, indeed, that he could ever consent to

give powers to Congress. He had two reasons, either of which was sufficient,—first, Congress, as a legislative body, does not stand on the people; secondly, it is a single body.

1. He would not repeat the remarks he had formerly made on the principles of representation. He would only say, that an inequality in it has ever been a poison contaminating every branch of government. In Great Britain, where this

poison has had a full operation, the security of private rights is owing entirely to the purity of her tribunals of justice, the judges of which are neither appointed nor paid by a venal parliament. The political liberty of that

nation, owing to the inequality of representation, is at the mercy of its rulers. He means not to insinuate that there is any parallel between the situation of that country and ours, at present. But it is a lesson we ought not to

disregard, that the smallest bodies in Great Britain are notoriously the most corrupt. Every other source of influence must also be stronger in small than in large bodies of men. When Lord Chesterfield had told us that one of the Dutch

provinces had been seduced into the views of France, he need not have added that it was not Holland, but one of the smallest of them. There are facts among ourselves which are known to all. Passing over others, we will only remark that

the impost, so anxiously wished for by the public, was defeated not by any of the larger states in the Union.

2. Congress is a single legislature. Despotism comes on mankind in different shapes—sometimes in an executive, sometimes in a military one. Is there no danger of a legislative despotism? Theory and practice both proclaim it. If the

legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it, within itself, into distinct and independent branches. In a single House there is no check but the

inadequate one of the virtue and good sense of those who compose it.

On another great point, the contrast was equally favorable to the plan reported by the Committee of the Whole. It vested the executive powers in a single magistrate. The plan of New Jersey vested them in a plurality. In order to

control the legislative authority, you must divide it. In order to control the executive, you must unite it. One man will be more responsible than three. Three will contend among themselves, till one becomes the master of his

colleagues. In the triumvirates of Rome, first Cæsar, then Augustus, are witnesses of this truth. The kings of Sparta, and the consuls of Rome, prove also the factious consequences of dividing the executive magistracy. Having already

taken up so much time, he would not, he said, proceed to any of the other points. Those on which he had dwelt are sufficient of themselves; and on the decision of them the fate of the others will depend.

Mr. PINCKNEY. 112 The whole comes to this, as he conceived. Give New Jersey an equal vote, and she will dismiss her scruples, and concur in the national system. He thought the Convention authorized to go any length, in recommending,

which they found necessary to remedy the evils which produced this Convention.

Mr. ELLSWORTH proposed as a more distinctive form of collecting the mind of the committee on the subject, “that the legislative power of the United States should remain in Congress.” This was not seconded, though it seemed better

calculated for the purpose than the first proposition of Mr. Patterson, in place of which Mr. Ellsworth wished to substitute it.

Mr. RANDOLPH was not scrupulous on the point of power. When the salvation of the republic was at stake, it would be treason to our trust, not to propose what we found necessary. He painted in strong colors the imbecility of the

existing Confederacy, and the danger of delaying a substantial reform. In answer to the objection drawn from the sense of our constituents, as denoted by their acts relating to the Convention and the objects of their deliberation, he

observed that, as each state acted separately in the case, it would have been indecent for it to have charged the existing constitution with all the vices which it might have perceived in it. The first state that set on foot this

experiment would not have been justified in going so far, ignorant as it was of the opinion of others, and sensible as it must have been of the uncertainty of a successful issue to the experiment. There are reasons certainly of a

peculiar nature, where the ordinary cautions must be dispensed with; and this is certainly one of them. He would not, as far as depended on him, leave any thing that seemed necessary, undone. The present moment is favorable, and is

probably the last that will offer.

The true question is, whether we shall adhere to the federal plan, or introduce the national plan. The insufficiency of the former has been fully displayed by the trial already made. There are but two modes by which the end of a

general government can be attained: the first, by coercion, as proposed by Mr. Patterson’s plan; the second, by real legislation, as proposed by the other plan. Coercion he pronounced to be impracticable, expensive, cruel to

individuals. It tended, also, to habituate the instruments of it to shed the blood, and riot in the spoils of their fellow-citizens, and consequently train them up for the service of ambition. We must resort, therefore, to a national

legislation over individuals; for which Congress are unfit. To vest such power in them would be blending the legislative with the executive, contrary to the received maxim on this subject. If the union of these powers, heretofore, in

Congress has been safe, it has been owing to the general impotency of that body. Congress are, moreover, not elected by the people, but by the legislatures, who retain even a power of recall. They have, therefore, no will of their own;

they are a mere diplomatic body, and are always obsequious to the views of the states, who are always encroaching on the authority of the United States. A provision for harmony among the states, as in trade, naturalization, c.; for

crushing rebellion, whenever it may rear its crest; and for certain other general benefits, must be made.

The powers for these purposes can never be given to a body inadequate as Congress are in point of representation, elected in the mode in which they are, and possessing no more confidence than they do: for, notwithstanding what has been

said to the contrary, his own experience satisfied him that a rooted distrust of Congress pretty generally prevailed. A national government alone, properly constituted, will answer the purpose; and he begged it to be considered that

the present is the last moment for establishing one. After this select experiment, the people will yield to despair. 113

The committee rose, and the House adjourned.

MONDAY, June 18


In Committee of the Whole, on the propositions of Mr. Patterson and Mr. Randolph. On motion of Mr. DICKINSON, to postpone the first resolution in Mr. Patterson’s plan, in order to take up the following, viz.:—

“That the Articles of Confederation ought to be revised and amended, so as to render the government of the United States adequate to the exigencies, the preservation, and the prosperity of the Union,”—

the postponement was agreed to by ten states; Pennsylvania divided.

Mr. HAMILTON had been hitherto silent on the business before the Convention, partly from respect to others whose superior abilities, age, and experience, rendered him unwilling to bring forward ideas dissimilar to theirs; and partly

from his delicate situation with respect to his own state, to whose sentiments, as expressed by his colleagues, he could by no means accede. The crisis, however, which now marked our affairs, was too serious to permit any scruples

whatever to prevail over the duty imposed on every man to contribute his efforts for the public safety and happiness. He was obliged, therefore, to declare himself unfriendly to both plans. He was particularly opposed to that from New

Jersey, being fully convinced that no amendment of the Confederation, leaving the states in possession of their sovereignty, could possibly answer the purpose. On the other hand, he confessed he was much discouraged, by the amazing

extent of country, in expecting the desired blessings from any general sovereignty that could be substituted. As to the powers of the Convention, he thought the doubts started on that subject had arisen from distinctions and reasonings

too subtle. A federal government he conceived to mean an association of independent communities into one. Different confederacies have different powers, and exercise them in different ways. In some instances, the powers are exercised

over collective bodies; in others, over individuals, as in the German Diet, and among ourselves, in cases of piracy. Great latitude, therefore, must be given to the signification of the term. The plan last proposed departs, itself,

from the federal idea, as understood by some, since it is to operate eventually on individuals. He agreed, moreover, with the honorable gentleman from Virginia, (Mr. Randolph,) that we owed it to our country to do, on this emergency,

whatever we should deem essential to its happiness. The states sent us here to provide for the exigencies of the Union. To rely on and propose any plan not adequate to these exigencies, merely because it was not clearly within our

powers, would be to sacrifice the means to the end. It may be said, that the states cannot ratify a plan not within the purview of the Article of the Confederation providing for alterations and amendments. But may not the states

themselves, in which no constitutional authority equal to this purpose exists in the legislatures, have had in view a reference to the people at large? In the senate of New York, a proviso was moved, that no act of the Convention

should be binding until it should be referred to the people and ratified; and the motion was lost by a single voice only, the reason assigned against it being, that it might possibly be found an inconvenient shackle.

The great question is, what provision shall we make for the happiness of our country? He would first make a comparative examination of the two plans, prove that there were essential defects in both, and point out such changes as might

render a national one efficacious. The great and essential principles necessary for the support of government are—1. An active and constant interest in supporting it. This principle does not exist in the states, in favor of the federal

government. They have evidently in a high degree, the esprit de corps. They constantly pursue internal interests adverse to those of the whole. They have their particular debts, their particular plans of finance, c. All these, when

opposed to, invariably prevail over, the requisitions and plans of Congress. 2. The love of power Men love power. The same remarks are applicable to this principle. The states have constantly shown a disposition rather to regain the

powers delegated by them, than to part with more, or to give effect to what they had parted with. The ambition of their demagogues is known to hate the control of the general government. It may be remarked, too, that the citizens have

not that anxiety to prevent a dissolution of the general government as of the particular governments. A dissolution of the latter would be fatal; of the former, would still leave the purposes of government attainable to a considerable

degree. Consider what such a state as Virginia will be in a few years—a few compared with the life of nations. How strongly will it feel its importance and self-sufficiency! 3. An habitual attachment of the people. The whole force of

this tie is on the side of the state government. Its sovereignty is immediately before the eyes of the people; its protection is immediately enjoyed by them. From its hand distributive justice, and all those acts which familiarize and

endear a government to a people, are dispensed to them. 4. Force, by which may be understood a coercion of laws, or coercion of arms. Congress have not the former, except in few cases. In particular states, this coercion is nearly

sufficient; though he held it, in most cases, not entirely so. A certain portion of military force is absolutely necessary in large communities. Massachusetts is now feeling this necessity, and making provision for it. But how can this

force be exerted on the states collectively? It is impossible. It amounts to a war between the parties. Foreign powers, also, will not be idle spectators. They will interpose; the confusion will increase; and a dissolution of the Union

will ensue. 5. Influence, —he did not mean corruption, but a dispensation of those regular honors and emoluments which produce an attachment to the government. Almost all the weight of these is on the side of the states; and must

continue so as long as the states continue to exist. All the passions, then, we see, of avarice, ambition, interest, which govern most individuals, and all public bodies, fall into the current of the states, and do not flow into the

stream of the general government. The former, therefore, will generally be an overmatch for the general government, and render any confederacy in its very nature precarious. Theory is in this case fully confirmed by experience. The

Amphictyonic Council had, it would seem, ample powers for general purposes. It had, in particular, the power of fining and using force against delinquent members. What was the consequence? Their decrees were mere signals of war. The

Phocian war is a striking example of it. Philip, at length, taking advantage of their disunion, and insinuating himself into their councils, made himself master of their fortunes. The German confederacy affords another lesson. The

authority of Charlemagne seemed to be as great as could be necessary. The great feudal chiefs, however, exercising their local sovereignties, soon felt the spirit, and found the means, of encroachments, which reduced the imperial

authority to a nominal sovereignty. The Diet has succeeded; which, though aided by a prince, at its head, of great authority independently of his imperial attributes, is a striking illustration of the weakness of confederated

governments. Other examples instruct us in the same truth. The Swiss Cantons have scarce any union at all, and have been more than once at war with one another. How then are all these evils to be avoided? Only by such a complete

sovereignty in the general government as will turn all the strong principles and passions above mentioned on its side. Does the scheme of New Jersey produce this effect? Does it afford any substantial remedy whatever? On the contrary,

it labors under great defects, and the defect of some of its provisions will destroy the efficacy of others. It gives a direct revenue to Congress, but this will not be sufficient. The balance can only be supplied by requisitions;

which experience proves cannot be relied on. If states are to deliberate on the mode, they will also deliberate on the object, of the supplies; and will grant or not grant, as they approve or disapprove of it. The delinquency of one

will invite and countenance it in others. Quotas, too, must, in the nature of things, be so unequal, as to produce the same evil. To what standard will you resort? Land is a fallacious one. Compare Holland with Russia; France, or

England, with other countries of Europe; Pennsylvania with North Carolina;—will the relative pecuniary abilities, in those instances, correspond with the relative value of land? Take numbers of inhabitants for the rule, and make like

comparison of different countries, and you will find it to be equally unjust. The different degrees of industry and improvement in different countries render the first object a precarious measure of wealth. Much depends, too, on

situation. Connecticut, New Jersey, and North Carolina, not being commercial states, and contributing to the wealth of the commercial ones, can never bear quotas assessed by the ordinary rules of proportion. They will, and must, fail

in their duty. Their example will be followed,—and the union itself be dissolved. Whence, then, is the national revenue to be drawn? From commerce; even from exports, which, notwithstanding the common opinion, are fit objects of

moderate taxation; from excise, c. c.—These, though not equal, are less unequal than quotas. Another destructive ingredient in the plan is that equality of suffrage which is so much desired by the small states. It is not in human

nature that Virginia and the large states should consent to it; or, if they did, that they should long abide by it. It shocks too much all ideas of justice, and every human feeling. Bad principles in a government, though slow, are sure

in their operation, and will gradually destroy it. A doubt has been raised whether Congress at present have a right to keep ships or troops in time of peace. He leans to the negative. Mr. Patterson’s plan provides no remedy. If the

powers proposed were adequate, the organization of Congress is such, that they could never be properly and effectually exercised. The members of Congress, being chosen by the states and subject to recall, represent all the local

prejudices. Should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established. The general power, whatever be its form, if it preserves itself, must swallow up the state

powers. Otherwise, it will be swallowed up by them. It is against all the principles of a good government, to vest the requisite powers in such a body as Congress. Two sovereignties cannot coëxist within the same limits. Giving powers

to Congress must eventuate in a bad government, or in no government. The plan of New Jersey, therefore, will not do. What, then, is to be done? Here he was embarrassed. The extent of the country to be governed discouraged him. The

expense of a general government was also formidable; unless there were such a diminution of expense, on the side of the state governments, as the case would admit. If they were extinguished, he was persuaded that great economy might be

obtained by substituting a general government. He did not mean, however, to shock the public opinion by proposing such a measure. On the other hand, he saw no other necessity for declining it. They are not necessary for any of the

great purposes of commerce, revenue, or agriculture. Subordinate authorities, he was aware, would be necessary. There must be district tribunals; corporations for local purposes. But cui bono the vast and expensive apparatus now

appertaining to the states? The only difficulty of a serious nature which occurred to him, was that of drawing representatives from the extremes to the centre of the community. What inducements can be offered that will suffice? The

moderate wages for the first branch could only be a bait to little demagogues. Three dollars, or thereabouts, he supposed, would be the utmost. The Senate, he feared, from a similar cause, would be filled by certain undertakers, who

wish for particular offices under the government.

This view of the subject almost led him to despair that a republican government could be established over so great an extent. He was sensible, at the same time, that it would be unwise to propose one of any other form. In his private

opinion, he had no scruple in declaring, supported as he was by the opinion of so many of the wise and good, that the British government was the best in the world; and that he doubted much whether any thing short of it would do in

America. He hoped gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place, and was still going on. It was once thought, that the power of

Congress was amply sufficient to secure the end of their institution. The error was now seen by every one. The members most tenacious of republicanism, he observed, were as loud as any in declaiming against the vices of democracy. This

progress of the public mind led him to anticipate the time, when others as well as himself would join in the praise bestowed by Mr. Neckar on the British constitution—namely, that it is the only government in the world “which unites

public strength with individual security.” In every community where industry is encouraged, there will be a division of it into the few and the many. Hence, separate interests will arise. There will be debtors and creditors, c. Give

all power to the many, they will oppress the few. Give all power to the few, they will oppress the many. Both, therefore, ought to have the power, that each may defend itself against the other. To the want of this check, we owe our

paper money, instalment laws, c. To the proper adjustment of it, the British owe the excellence of their constitution. Their House of Lords is a most noble institution. Having nothing to hope for by a change, and a sufficient interest,

by means of their property, in being faithful to the national interest, they form a permanent barrier against every pernicious innovation, whether attempted on the part of the crown or of the commons. No temporary Senate will have

firmness enough to answer the purpose. The senate of Maryland, which seems to be so much appealed to, has not yet been sufficiently tried. Had the people been unanimous and eager in the late appeal to them on the subject of a paper

emission, they would have yielded to the torrent. Their acquiescing in such an appeal is a proof of it. Gentlemen differ in their opinions concerning the necessary checks, from the different estimates they form of the human passions.

They suppose seven years a sufficient period to give the Senate an adequate firmness, from not duly considering the amazing violence and turbulence of the democratic spirit. When a great object of government is pursued, which seizes

the popular passions, they spread like wild-fire and become irresistible. He appealed to the gentlemen from the New England States, whether experience had not there verified the remark. As to the executive, it seemed to be admitted

that no good one could be established on republican principles. Was not this giving up the merits of the question; for can there be a good government without a good executive? The English model was the only good one on this subject.

The hereditary interest of the king was so interwoven with that of the nation, and his personal emolument so great, that he was placed above the danger of being corrupted from abroad; and at the same time was both sufficiently

independent and sufficiently controlled, to answer the purpose of the institution at home. One of the weak sides of republics was their being liable to foreign influence and corruption. Men of little character, acquiring great power,

become easily the tools of intermeddling neighbors. Sweden was a striking instance. The French and English had each their parties during the late revolution, which was effected by the predominant influence of the former. What is the

inference from all these observations? That we ought to go as far, in order to attain stability and permanency, as republican principles will admit. Let one branch of the legislature hold their places for life, or at least during good

behavior. Let the executive also, be for life. He appealed to the feelings of the members present, whether a term of seven years would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to

insure the services of the best citizens. On this plan, we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a republican government, it will be asked. Yes, if all the

magistrates are appointed and vacancies are filled by the people, or a process of election originating with the people. He was sensible that an executive, constituted as he proposed, would have in fact but little of the power and

independence that might be necessary. On the other plan, of appointing him for seven years, he thought the executive ought to have but little power. He would be ambitious, with the means of making creatures; and as the object of his

ambition would be to prolong his power, it is probable that, in case of war, he would avail himself of the emergency, to evade or refuse a degradation from his place. An executive for life has not this motive for forgetting his

fidelity, and will therefore be a safer depository of power. It will be objected, probably, that such an executive will be an elective monarch, and will give birth to the tumults which characterize that form of government. He would

reply, that monarch is an indefinite term. It marks not either the degree or duration of power. If this executive magistrate would be a monarch for life, the other proposed by the report from the Committee of the Whole would be a

monarch for seven years. The circumstance of being elective was also applicable to both. It had been observed, by judicious writers, that elective monarchies would be the best if they could be guarded against the tumults excited by the

ambition and intrigues of competitors. He was not sure that tumults were an inseparable evil. He thought this character of elective monarchies had been taken rather from particular cases than from general principles. The election of

Roman emperors was made by the army. In Poland, the election is made by great rival princes, with independent power, and ample means of raising commotions. In the German empire, the appointment is made by the electors and princes, who

have equal motives and means for exciting cabals and parties. Might not such a mode of election be devised, among ourselves, as will defend the community against these effects in any dangerous degree? Having made these observations, he

would read to the committee a sketch of a plan which he should prefer to either of those under consideration. He was aware that it went beyond the ideas of most members. But will such a plan be adopted out of doors? In return he would

ask, will the people adopt the other plan? At present, they will adopt neither. But he sees the Union dissolving, or already dissolved—he sees evils operating in the states which must soon cure the people of their fondness for

democracies—he sees that a great progress has been already made, and is still going on, in the public mind. He thinks, therefore, that the people will in time be unshackled from their prejudices; and whenever that happens, they will

themselves not be satisfied at stopping where the plan of Mr. Randolph would place them, but be ready to go as far at least as he proposes. He did not mean to offer the paper he had sketched as a proposition to that committee. It was

meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. Randolph, in the proper stages of its future discussion. He reads his sketch in the words following:

to wit,

“I. The supreme legislative power of the United States of America to be vested in two different bodies of men; the one to be called the assembly, the other the senate; who, together, shall form the legislature of the United States,

with power to pass all laws whatsoever, subject to the negative hereafter mentioned.

“II. The assembly to consist of persons elected by the people, to serve for three years.

“III. The senate to consist of persons elected to serve during good behavior; their election to be made by electors chosen for that purpose by the people. In order to this, the states to be divided into election districts. On the

death, removal, or resignation of any senator, his place to be filled out of the district from which he came.

“IV. The supreme executive authority of the United States to be vested in a governor, to be elected to serve during good behavior; the election to be made by electors chosen by the people in the election districts aforesaid. The

authorities and functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have, with the advice and

approbation of the senate, the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of finance, war, and foreign affairs; to have the nomination of all other officers,

(ambassadors to foreign nations included,) subject to the approbation or rejection of the senate; to have the power of pardoning all offences except treason, which he shall not pardon without the approbation of the senate.

“V. On the death, resignation, or removal of the governor, his authorities to be exercised by the president of the senate till a successor be appointed.

“VI. The senate to have the sole power of declaring war; the power of advising and approving all treaties; the power of approving or rejecting all appointments of officers, except the heads or chiefs of the departments of finance, war,

and foreign affairs.

“VII. The supreme judicial authority to be vested in judges, to hold their offices during good behavior, with adequate and permanent salaries. This court to have original jurisdiction in all causes of capture, and an appellative

jurisdiction in all causes in which the revenues of the general government, or the citizens of foreign nations, are concerned.

“VIII. The legislature of the United States to have power to institute courts in each state for the determination of all matters of general concern.

“IX. The governor, senators, and all officers of the United States, to be liable to impeachment formal and corrupt conduct; and, upon conviction, to be removed from office, and disqualified for holding any place of trust or profit; all

impeachments to be tried by a court to consist of the chief—, or judge of the superior court of law of each state, provided such judge shall hold his place during good behavior and have a permanent salary.

“X. All laws of the particular states contrary to the constitution or laws of the United States to be utterly void; and, the better to prevent such laws being passed, the governor or president of each state shall be appointed by the

general government, and shall have a negative upon the laws about to be passed in the state of which he is the governor or president.

“XI. No state to have any forces, land or naval; and the militia of all the states to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them.”

On these several articles he entered into explanatory observations * corresponding with the principles of his introductory reasoning. 114

The committee rose, and the House adjourned.

TUESDAY, June 19


In Committee of the Whole, on the propositions of Mr. Patterson. The substitute offered yesterday by Mr. Dickinson being rejected by a vote now taken on it,—

Connecticut, New York, New Jersey, Delaware, ay, 4; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 6; Maryland, divided.

Mr. Patterson’s plan was again at large before the committee.

Mr. MADISON. Much stress has been laid by some gentlemen on the want of power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics

attached to a federal plan would support this objection. One characteristic was, that, in a federal government, the power was exercised not on the people individually, but on the people collectively, on the states. Yet in some

instances, as in piracies, captures, c., the existing Confederacy: and in many instances the amendments to it proposed by Mr. Patterson, must operate immediately on individuals. The other characteristic was, that a federal government

derived its appointments not immediately from the people, but from the states which they respectively composed. Here, too, were facts on the other side. In two of the states, Connecticut and Rhode Island, the delegates to Congress were

chosen, not by the legislatures, but by the people at large; and the plan of Mr. Patterson intended no change in this particular.

It had been alleged, (by Mr. Patterson,) that the Confederation, having been formed by unanimous consent, could be dissolved by unanimous consent only. Does this doctrine result from the nature of compacts? Does it arise from any

particular stipulation in the Articles of Confederation? If we consider the Federal Union as analagous to the fundamental compact by which individuals compose one society, and which must, in its theoretic origin at least, have been the

unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact, by a part of the society, would certainly

absolve the other part from their obligations to it. If the breach of any article, by any of the parties, does not set the others at liberty, it is because the contrary is implied in the compact itself, and particularly by that law of

it which gives an indefinite authority to the majority to bind the whole, in all cases. This latter circumstance shows, that we are not to consider the Federal Union as analogous to the social compact of individuals: for, if it were

so, a majority would have a right to bind the rest, and even to form a new constitution for the whole; which the gentleman from New Jersey would be among the last to admit. If we consider the Federal Union as analogous, not to the

social compacts among individual men, but to the conventions among individual states, what is the doctrine resulting from these conventions? Clearly, according to the expositors of the law of nations, that a breach of any one article,

by any one party, leaves all the other parties at liberty to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties, indeed, it is expressly

stipulated, that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war, which is in general understood to dissolve all subsisting treaties. But are there

any exceptions of this sort to the Articles of Confederation? So far from it, that there is not even an express stipulation that force shall be used to compel an offending member of the Union to discharge its duty. He observed, that

the violations of the Federal Articles had been numerous and notorious. Among the most notorious was an act of New Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congress, and yielded no

further to the expostulations of their deputies, than barely to rescind her vote of refusal, without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper,

however, that the true nature of the existing Confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands.

Proceeding to the consideration of Mr. Patterson’s plan, he stated the object of a proper plan to be twofold—first, to preserve the Union; secondly, to provide a government that will remedy the evils felt by the states, both in their

united and individual capacities. Examine Mr. Patterson’s plan, and say whether it promises satisfaction in these respects.

1. Will it prevent the violations of the law of nations and of treaties, which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the states to these violations has been manifested in sundry

instances. The files of Congress contain complaints, already, from almost every nation with which treaties have been formed. Hitherto, indulgence has been shown to us. This cannot be the permanent disposition of foreign nations. A

rupture with other powers is among the greatest of national calamities; it ought, therefore, to be effectually provided, that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not

sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the states as uncontrolled as ever.

2. Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently exemplified among ourselves, as well as in every other confederated republic, ancient and modern. By the Federal

Articles, transactions with the Indians appertain to Congress, yet in several instances the states have entered into treaties and wars with them. In like manner, no two or more states can form among themselves any treaties, c., without

the consent of Congress; yet Virginia and Maryland, in one instance—Pennsylvania and New Jersey, in another—have entered into compacts without previous application or subsequent apology. No state, again, can of right raise troops in

time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Massachusetts, notwithstanding, (the most powerful member of the Union,) already raised a body of troops?

Is she not now augmenting them, without having even deigned to apprise Congress of her intentions? In fine, have we not seen the public land dealt out to Connecticut to bribe her acquiescence in the decree constitutionally awarded

against her claim on the territory of Pennsylvania?—for no other possible motive can account for the policy of Congress in that measure. If we recur to the examples of other confederacies, we shall find in all of them the same tendency

of the parts to encroach on the authority of the whole. He then reviewed the Amphictyonic and Achæan confederacies, among the ancients, and the Helvetic, Germanic, and Belgic, among the moderns; tracing their analogy to the United

States in the constitution and extent of their federal authorities; in the tendency of the particular members to usurp on these authorities, and to bring confusion and ruin on the whole. He observed, that the plan of Mr. Patterson,

besides omitting a control over the states, as a general defence of the federal prerogatives, was particularly defective in two of its provisions. In the first place, its ratification was not to be by the people at large, but by the

legislatures. It could not, therefore, render the acts of Congress, in pursuance of their powers, even legally paramount to the acts of the states. And, in the second place, it gave to the federal tribunal an appellate jurisdiction

only even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittal in the state tribunals: of what avail would an appellate tribunal be after an acquittal? Besides, in most, if not all,

of the states, the executives have, by their respective constitutions, the right of pardoning: how could this be taken from them by a legislative ratification only?

3. Will it prevent trespasses of the states on each other? Of these, enough has been already seen. He instanced acts of Virginia and Maryland, which gave a preference to their own citizens in cases where the citizens of other states

are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper money, and other kindred measures, as also aggressions. The states, relatively to one another, being each of them either

debtor or creditor, the creditor states must suffer unjustly from every emission by the debtor states. We have seen retaliating acts on the subject, which threatened danger, not to the harmony only, but the tranquillity of the Union.

The plan of Mr. Patterson, not giving even a negative on the acts of the states, left them as much at liberty as ever to execute their unrighteous projects against each other.

4. Will it secure the internal tranquillity of the states themselves: The insurrections in Massachusetts admonished all the states of the danger to which they were exposed. Yet the plan of Mr. Patterson contained no provisions for

supplying the defect of the Confederation on this point. According to the republican theory, indeed, right and power, being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may, in an

appeal to force, be an overmatch for the majority;—in the first place, if the minority happen to include all such as possess the skill and habits of military life, with such as possess the great pecuniary resources, one third may

conquer the remaining two thirds; in the second place, one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, and who, for

obvious reasons, must be more ready to join the standard of sedition than that of established government; and, in the third place, where slavery exists, the republican theory becomes still more fallacious.

5. Will it secure a good internal legislation and administration to the particular states? In developing the evils which vitiate the political system of the United States, it is proper to take into view those which prevail within the

states individually, as well as those which affect them collectively; since the former indirectly affect the whole, and there is great reason to believe that the pressure of them had a full share in the motives which produced the

present Convention. Under this head he enumerated and animadverted on—first, the multiplicity of the laws passed by the several states; secondly, the mutability of their laws; thirdly, the injustice of them; and, fourthly, the

impotence of them;—observing that Mr. Patterson’s plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the community.

6. Will it secure the Union against the influence of foreign powers over its members? He pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. As lessons

which claimed particular attention, he cited the intrigues practised among the Amphictyonic confederates, first by the kings of Persia, and afterwards, fatally, by Philip of Macedon; among the Achæans, first by Macedon, and afterwards,

no less fatally, by Rome; among the Swiss, by Austria, France, and the lesser neighboring powers; among the members of the Germanic body, by France, England, Spain, and Russia; and in the Belgic republic, by all the great neighboring

powers. The plan of Mr. Patterson, not giving to the general councils any negative on the will of the particular states, left the door open for the like pernicious machinations among ourselves.

7. He begged the smaller states, which were most attached to Mr. Patterson’s plan, to consider the situation in which it would leave them. In the first place, they would continue to bear the whole expense of maintaining their delegates

in Congress. It ought not to be said that, if they were willing to bear this burden, no others had a right to complain. As far as it led the smaller states to forbear keeping up a representation, by which the public business was

delayed, it was evidently a matter of common concern. An examination of the minutes of Congress would satisfy every one, that the public business had been frequently delayed by this cause; and that the states most frequently

unrepresented in Congress were not the larger states. He reminded the Convention of another consequence of leaving on a small state the burden of maintaining a representation in Congress. During a considerable period of the war, one of

the representatives of Delaware, in whom alone, before the signing of the Confederation, the entire vote of that state, and after that event one half of its vote, frequently resided, was a citizen and resident of Pennsylvania, and held

an office in his own state incompatible with an appointment from it to Congress. During another period, the same state was represented by three delegates, two of whom were citizens of Pennsylvania, and the third a citizen of New

Jersey. These expedients must have been intended to avoid the burden of supporting delegates from their own state. But whatever might have been the cause, was not, in effect, the vote of one state doubled, and the influence of another

increased by it? 115 In the second place, the coercion on which the efficacy of the plan depends can never be exerted but on themselves. The larger states will be impregnable, the smaller only can feel the vengeance of it. He

illustrated the position by the history of the Amphictyonic confederates; and the ban of the German empire. It was the cobweb which could entangle the weak, but would be the sport of the strong.

8. He begged them to consider the situation in which they would remain, in case their pertinacious adherence to an inadmissible plan should prevent the adoption of any plan. The contemplation of such an event was painful; but it would

be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the union of the states be dissolved, and one of two consequences must happen. Either the states must

remain individually independent and sovereign; or two or more confederacies must be formed among them. In the first event, would the small states be more secure against the ambition and power of their larger neighbors, than they would

be under a general government pervading with equal energy every part of the empire, and naving an equal interest in protecting every part against every other part? In the second, can the smaller expect that their larger neighbors would

confederate with them on the principle of the present Confederacy, which gives to each member an equal suffrage; or that they would exact less severe concessions from the smaller states, than are proposed in the scheme of Mr. Randolph?

The great difficulty lies in the affair of representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from New Jersey, (Mr. Brearly and Mr. Patterson,) that it would not be

just to allow Virginia, which was sixteen times as large as Delaware, an equal vote only. Their language was, that it would not be safe for Delaware to allow Virginia sixteen times as many votes. The expedient proposed by them was,

that all the states should be thrown into one mass, and a new partition be made into thirteen equal parts. Would such a scheme be practicable? The dissimilarities existing in the rules of property, as well as in the manners, habits,

and prejudices, of different states, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe, (the king of France,) directed by the wisdom of one of the most

enlightened and patriotic ministers (Mr. Neckar) that any age has produced, to equalize, in some points only, the different usages and regulations of the different provinces. But, admitting a general amalgamation and repartition of the

states to be practicable, and the danger apprehended by the smaller states from a proportional representation to be real,—would not a particular and voluntary coalition of these with their neighbors be less inconvenient to the whole

community, and equally effectual for their own safety? If New Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the states, in which case they would necessarily form a junction with their

neighbors, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the states, when it was, to say

the least, extremely difficult, would be obnoxious to many of the states, and when neither the inconvenience, nor the benefit, of the expedient, to themselves, would be lessened by confining it to themselves? The prospect of many new

states to the westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they should be entitled to vote according to their proportion of

inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole. 116

On a question for postponing generally the first proposition of Mr. Patterson’s plan, it was agreed to,—New York and New Jersey only being, no. 117

On the question, moved by Mr. KING, whether the committee should rise, and Mr. Randolph’s proposition be reported without alteration, which was in fact a question whether Mr. Randolph’s should be adhered to as preferable to those of

Mr. Patterson,—

Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3; Maryland divided.

Mr. Randolph’s plan, as reported from the committee [q. v. June 13th] being before the House, and—

The first resolution, “that a national government ought to be established, consisting, c.,” being taken up,

Mr. WILSON observed that, by a national government, he did not mean one that would swallow up the state governments, as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary

to the opinion of Col. Hamilton, that they might not only subsist, but subsist on friendly terms with the former. They were absolutely necessary for certain purposes, which the former could not reach. All large governments must be

subdivided into lesser jurisdictions. As examples he mentioned Persia, Rome, and particularly the divisions and subdivisions of England by Alfred.

Col. HAMILTON coincided with the proposition as it stood in the report. He had not been understood yesterday. By an abolition of the states, he meant that no boundary could be drawn between the national and state legislatures; that the

former must therefore have indefinite authority. If it were limited at all, the rivalship of the states would gradually subvert it. Even as corporations, the extent of some of them, as Virginia, Massachusetts, c., would be formidable.

As states, he thought they ought to be abolished. But he admitted the necessity of leaving in them subordinate jurisdictions. The examples of Persia and the Roman empire, cited by Mr. Wilson, were, he thought, in favor of his doctrine,

the great powers delegated to the satraps and proconsuls having frequently produced revolts and schemes of independence.

Mr. KING wished, as every thing depended on this proposition, that no objection might be improperly indulged against the phraseology of it. He conceived that the import of the term “states,” “sovereignty,” “ national, ” “federal,” had

been often used and applied in the discussions inaccurately and delusively. The states were not “sovereigns” in the sense contended for by some. They did not possess the peculiar features of sovereignty,—they could not make war, nor

peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They

had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the states comprises the idea of a confederation, it comprises

that also of consolidation. A union of the states is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the states; they can act, (and their acts will be binding,)

against the instructions of the states. If they declare war, war is de jure declared; captures made in pursuance of it are lawful; no acts of the states can vary the situation, or prevent the judicial consequences. If the states,

therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects, they formed a nation in others. The Convention could clearly

deliberate on and propose any alterations that Congress could have done under the Federal Articles. And could not Congress propose, by virtue of the last article, a change in any article whatever,—and as well that relating to the

equality of suffrage as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the states; but thought that much of their power ought to be taken from

them. 118

Mr. MARTIN said, he considered that the separation from Great Britain placed the thirteen states in a state of nature towards each other; that they would have remained in that state till this time, but for the Confederation; that they

entered into the Confederation on the footing of equality; that they met now to amend it, on the same footing; and that he could never accede to a plan that would introduce an inequality, and lay ten states at the mercy of Virginia,

Massachusetts, and Pennsylvania.

Mr. WILSON could not admit the doctrine that, when the colonies became independent of Great Britain, they became independent also of each other. He read the Declaration of Independence, observing thereon, that the United Colonies were

declared to be free and independent states, and inferring, that they were independent, not individually but unitedly, and that they were confederated, as they were independent states.

Col. HAMILTON assented to the doctrine of Mr. Wilson. He denied the doctrine that the states were thrown into a state of nature. He was not yet prepared to admit the doctrine that the Confederacy could be dissolved by partial

infractions of it. He admitted that the states met now on an equal footing, but could see no inference from that against concerting a change of the system in this particular. He took this occasion of observing, for the purpose of

appeasing the fear of the small states, that two circumstances would render them secure under a national government in which they might lose the equality of rank which they now held: one was the local situation of the three largest

states, Virginia, Massachusetts and Pennsylvania. They were separated from each other by distance of place, and equally so by all the peculiarities which distinguish the interests of one state from those of another. No combination,

therefore, could be dreaded. In the second place, as there was a gradation in the states, from Virginia, the largest, down to Delaware, the smallest, it would always happen that ambitious combinations among a few states might and would

be counteracted by defensive combinations of greater extent among the rest. No combination has been seen among the large counties, merely as such, against lesser counties. The more close the union of the states, and the more complete

the authority of the whole, the less opportunity will be allowed to the stronger states to injure the weaker. 119 .




In Convention, —Mr. William Blount, from North Carolina, took his seat.

The first resolution of the report of the Committee of the Whole being before the House—

Mr. ELLSWORTH, seconded by Mr. GORHAM, moves to alter it, so as to run “that the government of the United States ought to consist of a supreme legislative, executive, and judiciary.” This alteration, he said, would drop the word

national, and retain the proper title “the United States.” He could not admit the doctrine that a breach of any of the Federal Articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still

subsisting. He wished, also, the plan of the Convention to go forth as an amendment of the Articles of the Confederation, since, under this idea, the authority of the legislatures could ratify it. If they are unwilling, the people will

be so too. If the plan goes forth to the people for ratification, several succeeding conventions within the states would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up


Mr. RANDOLPH did not object to the change of expression, but apprised the gentleman who wished for it, that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification.

The motion of Mr. Ellsworth was acquiesced in, nem. con.

The second resolution, “That the national legislature ought to consist of two branches,” being taken up, the word “national” struck out, as of course.

Mr. LANSING observed, that the true question here was, whether the Convention would adhere to, or depart from, the foundation of the present Confederacy; and moved, instead of the second resolution, “that the powers of legislation be

vested in the United States in Congress.” He had already assigned two reasons against such an innovation as was proposed,—first, the want of competent powers in the Convention; secondly, the state of the public mind. It had been

observed, (by Mr. Madison), in discussing the first point, that in two states the delegates to Congress were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the delegates, however

chosen, did not represent the people, merely as so many individuals, but as forming a sovereign state. Mr. Randolph put it, he said, on its true footing—namely that the public safety superseded the scruple arising from the review of

our powers. But, in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. Mr. Wilson contended, that,

as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. Any act whatever of so respectable a body must have a great effect; and, if it does not succeed, will be a source of great

dissensions. He admitted that there was no certain criterion of the public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the states to the scheme of an impost. It could not be expected that

those possessing sovereignty could ever voluntarily part with it. It was not to be expected from any one state, much less from thirteen. He proceeded to make some observations on the plan itself, and the arguments urged in support of

it. The point of representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not

having more than one or two. A great inequality existed in the counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the state prejudices:—will

not any other body, whether chosen by the legislatures or people of the states, also represent their prejudices? It had been asserted by his colleague, (Col. Hamilton), that there was no coincidence of interests among the large states

that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the states, there was equal safety for all of them whether the representation remained as heretofore, or were

proportioned as now proposed. It is proposed that the general legislature shall have a negative on the laws of the states. Is it conceivable that there will be leisure for such a task? There will, on the most moderate calculation, be

as many acts sent up from the states as there are days in the year. Will the members of the general legislature be competent judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in New

Hampshire? Such a negative would be more injurious than that of Great Britain heretofore was. It is said that the national government must have the influence arising from the grant of offices and honors. In order to render such a

government effectual, he believed such an influence to be necessary. But if the states will not agree to it, it is in vain, worse than in vain, to make the proposition. If this influence is to be attained, the states must be entirely

abolished. Will any one say, this would ever be agreed to? He doubted whether any general government, equally beneficial to all, can be attained. That now under consideration, he is sure, must be utterly unattainable. He had another

objection. The system was too novel and complex. No man could foresee what its operation will be, either with respect to the general government or the state governments. One or other, it has been surmised, must absorb the whole. 120

Col. MASON did not expect this point would have been reagitated. The essential differences between the two plans had been clearly stated. The principal objections against that of Mr. Randolph were, the want of power, and the want of

practicability. There can be no weight in the first, as the fiat is not to be here, but in the people. He thought with his colleague (Mr. Randolph) that there were, besides, certain crises, in which all the ordinary cautions yielded to

public necessity. He gave, as an example, the eventual treaty with Great Britain, in forming which the commissioners of the United States had boldly disregarded the improvident shackles of Congress; had given to their country an

honorable and happy peace; and, instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The impracticability of gaining the public concurrence, he thought, was still

more groundless. Mr. Lansing had cited the attempts of Congress to gain an enlargement of their powers, and had inferred, from the miscarriage of these attempts, the hopelessness of the plan which he (Mr. Lansing) opposed. He thought a

very different inference ought to have been drawn, viz., that the plan which Mr. Lansing espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on

Congress as a body, much less on any particular members of it. He meant, however, to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for the

privation of so many other enjoyments; and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests, so jealous of their liberties, will give up their all, will

surrender both the sword and the purse, to the same body,—and that, too, not chosen immediately by themselves? They never will. They never ought. Will they trust such a body with the regulation of their trade, with the regulation of

their taxes, with all the other great powers which are in contemplation? Will they give unbounded confidence to a secret journal,—to the intrigues, to the factions, which in the nature of things appertain to such an assembly? If any

man doubts the existence of these characters of Congress, let him consult their Journals for the years ’78, ’79, and ’80. It will be said, that, if the people are averse to parting with power, why is it hoped that they will part with

it to a national legislature? The proper answer is, that in this case they do not part with power: they only transfer it from one set of immediate representatives to another set. Much has been said of the unsettled state of the mind of

the people. He believed the mind of the people of America, as elsewhere, was unsettled as to some points, but settled as to others. In two points he was sure it was well settled,—first, in an attachment to republican government;

secondly, in an attachment to more than one branch in the legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have

resulted from the genius of the people. The only exceptions to the establishment of two branches in the legislature are the state of Pennsylvania, and Congress; and the latter the only single one not chosen by the people themselves.

What has been the consequence? The people have been constantly averse to giving that body further powers. It was acknowledged by Mr. Patterson, that this plan could not be enforced without military coercion. Does he consider the force

of this concession? The most jarring elements of nature, fire and water themselves, are not more incompatible than such a mixture of civil liberty and military execution. Will the militia march from one state into another, in order to

collect the arrears of taxes from the delinquent members of the republic? Will they maintain an army for this purpose? Will not the citizens of the invaded state assist one another, till they rise as one man and shake off the Union

altogether? Rebellion is the only case in which the military force of the state can be properly exerted against its citizens. In one point of view, he was struck with horror at the prospect of recurring to this expedient. To punish the

non-payment of taxes with death was a severity not yet adopted by despotism itself; yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the

innocent and the guilty. He took this occasion to repeat, that, notwithstanding his solicitude to establish a national government, he never would agree to abolish the state governments, or render them absolutely insignificant. They

were as necessary as the general government, and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, though comprising so

many distinguished characters, could not be expected to make a faultless government; and he would prefer trusting to posterity the amendment of its defects, rather than to push the experiment too far. 121

Mr. LUTHER MARTIN agreed with Col. Mason as to the importance of the state governments: he would support them at the expense of the general government, which was instituted for the purpose of that support. He saw no necessity for two

branches; and if it existed, Congress might be organized into two. He considered Congress as representing the people, being chosen by the legislatures, who were chosen by the people. At any rate, Congress represented the legislatures,

and it was the legislatures, not the people, who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the states must always have been ready to place further confidence in

Congress. The causes of repugnance must therefore be looked for elsewhere. At the separation from the British empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of

incorporating themselves into one. To these they look up for the security of their lives, liberties, and properties; to these they must look up. The federal government they formed to defend the whole against foreign nations in time of

war, and to defend the lesser states against the ambition of the larger. They are afraid of granting power unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the

sovereignties of the particular states which the Union was meant to support, and expose the lesser to being swallowed up by the larger. He conceived, also, that the people of the states, having already vested their powers in their

respective legislatures, could not resume them without a dissolution of their governments. He was against conventions in the states—was not against assisting states against rebellious subjects—thought the federal plan of Mr. Patterson

did not require coercion more than the national one, as the latter must depend for the deficiency of its revenues on requisitions and quotas—and that a national judiciary, extended into the states, would be ineffectual, and would be

viewed with a jealousy inconsistent with its usefulness. 122

Mr. SHERMAN seconded and supported Mr. Lansing’s motion. He admitted two branches to be necessary in the state legislatures, but saw no necessity in a confederacy of states. The examples were all of a single council. Congress carried

us through the war, and perhaps as well as any government could have done. The complaints at present are, not that the views of Congress are unwise or unfaithful, but that their powers are insufficient for the execution of their views.

The national debt, and the want of power somewhere to draw forth the national resources, are the great matters that press. All the states were sensible of the defect of power in Congress. He thought much might be said in apology for

the failure of the state legislatures to comply with the Confederation. They were afraid of leaning too hard on the people by accumulating taxes; no constitutional rule had been, of could be observed in the quotas; the accounts also

were unsettled, and every state supposed itself in advance rather than in arrears. For want of a general system, taxes to a due amount had not been drawn from trade, which was the most convenient resource. As almost all the states had

agreed to the recommendation of Congress on the subject of an impost, it appeared clearly that they were willing to trust Congress with power to draw a revenue from trade. There is no weight, therefore, in the argument drawn from a

distrust of Congress; for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Congress, indeed, by the Confederation, have in fact

the right of saying how much the people shall pay, and to what purpose it shall be applied; and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to

Congress, to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections; a few designing men in the large districts would carry their points; and the people would have no more

confidence in their new representatives than in Congress. He saw no reason why the state legislatures should be unfriendly, as had been suggested, to Congress. If they appoint Congress, and approve of their measures, they would be

rather favorable and partial to them. The disparity of the states in point of size, he perceived, was the main difficulty. But the large states had not yet suffered from the equality of votes enjoyed by the smaller ones. In all great

and general points, the interests of all the states were the same. The state of Virginia, notwithstanding the equality of votes, ratified the Confederation without even proposing any alteration. Massachusetts also ratified without any

material difficulty, c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the states, as some had proposed, would dissolve our treaties with foreign nations, which had been formed with us

as confederated states. He did not, however, suppose that the creation of two branches in the legislature would have such an effect. If the difficulty on the subject of representation cannot be otherwise got over, he would agree to

have two branches, and a proportional representation in one of them, provided each state had an equal voice in the other. This was necessary, to secure the rights of the lesser states, otherwise three or four of the large states would

rule the others as they please. Each state, like each individual, had its peculiar habits, usages, and manners, which constituted its happiness. It would not, therefore, give to others a power over this happiness, any more than an

individual would do, when he could avoid it. 123

Mr. WILSON urged the necessity of two branches; observed, that if a proper model was not to be found in other confederacies, it was not to be wondered at. The number of them was small, and the duration of some, at least, short. The

Amphictyonic and Achæan were formed in the infancy of political science, and appear, by their history and fate, to have contained radical defects. The Swiss and Belgic confederacies were held together, not by any vital principle of

energy, but by the incumbent pressure of formidable neighboring nations. The German owed its continuance to the influence of the House of Austria. He appealed to our own experience for the defects of our confederacy. He had been six

years, of the twelve since the commencement of the revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others, whether, on many important occasions, the public interest had not been

obstructed by the small members of the Union. The success of the revolution was owing to other causes than the constitution of Congress. In many instances it went on even against the difficulties arising from Congress themselves. He

admitted that the large states did accede, as had been stated, to the Confederation in its present form; but it was the effect of necessity, not of choice. There are other instances of their yielding, from the same motive, to the

unreasonable measures of the small states. The situation of things is now a little altered. He insisted that a jealousy would exist between the state legislatures and the general legislature, observing, that the members of the former

would have views and feelings very distinct, in this respect, from their constituents. A private citizen of a state is indifferent whether power be exercised by the general or state legislatures, provided it be exercised most for his

happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the national legislature with the eye of a jealous rival. He observed that the addresses of Congress to the

people at large had always been better received, and produced greater effect, than those made to the legislatures. 124

On the question for postponing, in order to take up Mr. Lansing’s proposition, “to vest the powers of legislation in Congress,”—

Connecticut, New York, New Jersey, Delaware, ay, 4; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 6. Maryland, divided.

On motion of the deputies from Delaware, the question on the second resolution in the report from the Committee of the Whole was postponed till to-morrow.




In Convention. —Mr. Jonathan Dayton, from New Jersey, took his seat.

The second resolution in the report from the Committee of the Whole being under consideration,—

Dr. JOHNSON. On a comparison of the two plans which had been proposed from Virginia and New Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the states.

The plan from Virginia did not profess to destroy this individuality altogether, but was charged with such a tendency. One gentleman alone, (Col. Hamilton,) in his animadversions on the plan of New Jersey, boldly and decisively

contended for an abolition of the state governments. Mr. Wilson and the gentleman from Virginia, who also were adversaries of the plan of New Jersey, held a different language. They wished to leave the states in possession of a

considerable, though a subordinate, jurisdiction. They had not yet, however, shown how this could consist with, or be secured against, the general sovereignty and jurisdiction which they proposed to give to the national government. If

this could be shown, in such a manner as to satisfy the patrons of the New Jersey propositions that the individuality of the states would not be endangered, many of their objections would, no doubt, be removed. If this could not be

shown, their objections would have their full force. He wished it, therefore, to be well considered whether, in case the states, as was proposed, should retain some portion of sovereignty at least, this portion could be preserved,

without allowing them to participate effectually in the general government—without giving them each a distinct and equal vote for the purpose of defending themselves in the general councils.

Mr. WILSON’S respect for Dr. Johnson, added to the importance of the subject, led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked, how the general government and individuality of the

particular states could be reconciled to each other,—and how the latter could be secured against the former? Might it not, on the other side, be asked, how the former was to be secured against the latter? It was generally admitted,

that a jealousy and rivalship would be felt between the general and particular governments. As the plan now stood, though indeed contrary to his opinion, one branch of the general government (the Senate, or second branch) was to be

appointed by the state legislatures. The state legislatures, therefore, by this participation in the general government, would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the general

government of defending itself, by having an appointment of some one constituent branch of the state governments? If a security be necessary on one side, it would seem reasonable to demand it on the other. But, taking the matter in a

more general view, he saw no danger to the states from the general government. In case a combination should be made by the large ones, it would produce a general alarm among the rest, and the project would be frustrated. But there was

no temptation to such a project. The states having in general a similar interest, in case of any propositions in the national legislature to encroach on the state legislatures, he conceived a general alarm would take place in the

national legislature itself; that it would communicate itself to the state legislatures; and would finally spread among the people at large. The general government will be as ready to preserve the rights of the states, as the latter

are to preserve the rights of individuals,—all the members of the former having a common interest, as representatives of all the people of the latter, to leave the state governments in possession of what the people wish them to retain.

He could not discover, therefore, any danger whatever on the side from which it was apprehended. On the contrary, he conceived that, in spite of every precaution, the general government would be in perpetual danger of encroachments

from the state governments. 125

Mr. MADISON was of opinion,—in the first place, that there was less danger of encroachment from the general government than from the state governments; and, in the second place, that the mischiefs from encroachments would be less fatal

if made by the former, than if made by the latter.

1. All the examples of other confederacies prove the greater tendency, in such systems, to anarchy than to tyranny; to a disobedience of the members than usurpations of the federal head. Our own experience had fully illustrated this

tendency. But it will be said, that the proposed change in the principles and form of the Union will vary the tendency; that the general government will have real and greater powers, and will be derived, in one branch at least, from

the people, not from the governments of the states. To give full force to this objection, let it be supposed for a moment that indefinite power should be given to the general legislature, and the states reduced to corporations

dependent on the general legislature,—why should it follow that the general government would take from the states any branch of their power, as far as its operation was beneficial, and its continuance desirable to the people? In some

of the states, particularly in Connecticut, all the townships are incorporated, and have a certain limited jurisdiction: have the representatives of the people of the townships in the legislature of the state ever endeavored to despoil

the townships of any part of their local authority? As far as this local authority is convenient to the people, they are attached to it; and their representatives, chosen by and amenable to them, naturally respect their attachment to

this, as much as their attachment to any other right or interest. The relation of a general government to state governments is parallel.

2. Guards were more necessary against encroachments of the state governments on the general government, than of the latter on the former. The great objection made against an abolition of the state governments was, that the general

government could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. The objection as stated lay not against the probable abuse of the general power, but against the imperfect use

that could be made of it throughout so great an extent of country, and over so great a variety of objects. As far as its operation would be practicable, it could not in this view be improper; as far as it would be impracticable, the

convenience of the general government itself would concur with that of the people in the maintenance of subordinate governments. Were it practicable for the general government to extend its care to every requisite object without the

coöperation of the state governments, the people would not be less free, as members of one great republic, than as members of thirteen small ones. A citizen of Delaware was not more free than a citizen of Virginia; nor would either be

more free than a citizen of America. Supposing, therefore, a tendency in the general government to absorb the state governments, no fatal consequence could result. Taking the reverse as the supposition, that a tendency should be left

in the state governments towards an independence on the general government, and the gloomy consequences need not be pointed out. The imagination of them must have suggested to the states the experiment we are now making to prevent the

calamity, and must have formed the chief motive with those present to undertake the arduous task.

On the question for resolving, “that the legislature ought to consist of two branches,”—

Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3; Maryland, divided. 126

The third resolution of the report being taken into consideration—

Gen. PINCKNEY moved, “that the first branch, instead of being elected by the people, should be elected in such manner as the legislature of each state should direct.” He urged,—first, that this liberty would give more satisfaction, as

the legislatures could then accommodate the mode to the convenience and opinions of the people; secondly, that it would avoid the undue influence of large counties, which would prevail if the elections were to be made in districts, as

must be the mode intended by the report of the committee; thirdly, that otherwise, disputed elections must be referred to the general legislature, which would be attended with intolerable expense and trouble to the distant parts of the


Mr. L. MARTIN seconded the motion.

Col. HAMILTON considered the motion as intended manifestly to transfer the election from the people to the state legislatures, which would essentially vitiate the plan. It would increase that state influence which could not be too

watchfully guarded against. All, too, must admit the possibility, in case the general government should maintain itself, that the state governments might gradually dwindle into nothing. The system, therefore, should not be engrafted on

what might possibly fail.

Mr. MASON urged the necessity of retaining the election by the people. Whatever inconvenience may attend the democratic principle, it must actuate one part of the government. It is the only security for the rights of the people.

Mr. SHERMAN would like an election by the legislatures best, but is content with the plan as it stands.

Mr. RUTLEDGE could not admit the solidity of the distinction between a mediate and immediate election by the people. It was the same thing to act by one’s self, and to act by another. An election by the legislature would be more

refined than an election immediately by the people; and would be more likely to correspond with the sense of the whole community. If this Convention had been chosen by the people in districts, it is not to be supposed that such proper

characters would have been preferred. The delegates to Congress, he thought, had also been fitter men than would have been appointed by the people at large.

Mr. WILSON considered the election of the first branch by the people not only as the corner-stone, but as the foundation, of the fabric; and that the difference between a mediate and immediate election was immense. The difference was

particularly worthy of notice in this respect—that the legislatures are actuated not merely by the sentiment of the people, but have an official sentiment opposed to that of the general government, and perhaps to that of the people


Mr. KING enlarged on the same distinction. He supposed the legislatures would constantly choose men subservient to their own views, as contrasted to the general interest; and that they might even devise modes of election that would be

subversive of the end in view. He remarked several instances in which the views of a state might be at variance with those of the general government; and mentioned particularly a competition between the national and state debts, for

the most certain and productive funds.

Gen. PINCKNEY was for making the state governments a part of the general system. If they were to be abolished, or lose their agency, South Carolina and the other states would have but a small share of the benefits of government.

On the question for Gen. Pinckney’s motion, to substitute “election of the first branch in such mode as the legislatures should appoint,” instead of its being “elected by the people.”

Connecticut, New Jersey, Delaware, South Carolina, ay, 4; Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, no, 6; Maryland, divided. 127

Gen. PINCKNEY then moved, “that the first branch be elected by the people in such mode as the legislatures should direct;” but waived it on its being hinted that such a provision might be more properly tried in the detail of the plan.

On the question for the election of the first branch “by the people, ”—

Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 9; New Jersey, no, 1; Maryland, divided.

The election of the first branch “for the term of three years,” being considered,—

Mr. RANDOLPH moved to strike out “three years,” and insert “two years.” He was sensible that annual elections were a source of great mischiefs in the states, yet it was the want of such checks against the popular intemperance as were

now proposed that rendered them so mischievous. He would have preferred annual to biennial, but for the extent of the United States, and the inconvenience which would result from them to the representatives of the extreme parts of the

empire. The people were attached to frequency of elections. All the constitutions of the states, except that of South Carolina, had established annual elections.

Mr. DICKINSON. The idea of annual elections was borrowed from the ancient usage of England, a country much less extensive than ours. He supposed biennial would be inconvenient. He preferred triennial; and, in order to prevent the

inconvenience of an entire change of the whole number at the same moment, suggested a rotation, by an annual election of one third.

Mr. ELLSWORTH was opposed to three years, supposing that even one year was preferable to two years. The people were fond of frequent elections, and might be safely indulged in one branch of the legislature. He moved for “one year.”

Mr. STRONG seconded and supported the motion.

Mr. WILSON, being for making the first branch an effectual representation of the people at large, preferred an annual election of it. This frequency was most familiar and pleasing to the people. It would not be more inconvenient to

them than triennial elections, as the people in all the states have annual meetings, with which the election of the national representatives might be made to coincide. He did not conceive that it would be necessary for the national

legislature to sit constantly, perhaps not half, perhaps not one fourth, of the year.

Mr. MADISON was persuaded that annual elections would be extremely inconvenient, and apprehensive that biennial would be too much so; he did not mean inconvenient to the electors, but to the representatives. They would have to travel

seven or eight hundred miles from the distant parts of the Union; and would probably not be allowed even a reimbursement of their expenses. Besides, none of those who wished to be reëlected would remain at the seat of government,

confiding that their absence would not affect them. The members of Congress had done this with few instances of disappointment. But as the choice was here to be made by the people themselves, who would be much less complaisant to

individuals, and much more susceptible of impressions from the presence of a rival candidate, it must be supposed that the members from the most distant states would travel backwards and forwards at least as often as the elections

should be repeated. Much was to be said, also, on the time requisite for new members (who would always form a large proportion) to acquire that knowledge of the affairs of the states in general, without which their trust could not be

usefully discharged.

Mr. SHERMAN preferred annual elections, but would be content with biennial. He thought the representatives ought to return home and mix with the people. By remaining at the seat of government they would acquire the habits of the place,

which might differ from those of their constituents.

Col. MASON observed, that, the states being differently situated, such a rule ought to be formed as would put them as nearly as possible on a level. If elections were annual, the Middle States would have a great advantage over the

extreme ones. He wished them to be biennial, and the rather as in that case they would coincide with the periodical elections of South Carolina, as well as of the other states.

Col. HAMILTON urged the necessity of three years. There ought to be neither too much nor too little dependence on the popular sentiments. The checks in the other branches of the government would be but feeble, and would need every

auxiliary principle that could be interwoven. The British house of commons were elected septennially, yet the democratic spirit of the constitution had not ceased. Frequency of elections tended to make the people listless to them, and

to facilitate the success of little cabals. This evil was complained of in all the states. In Virginia, it had been lately found necessary to force the attendance and voting of the people by severe regulations.

On the question for striking out “three years,”—

Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, Delaware, Maryland, no, 3; New Jersey, divided.

The motion for “two years” was then inserted, nem. con. 128


FRIDAY, June 22


In Convention. —The clause in the third resolution, “to receive fixed stipends, to be paid out of the national treasury,” being considered,—

Mr. ELLSWORTH moved to substitute payment by the states, out of their own treasuries; observing, that the manners of different states were very different in the style of living, and in the profits accruing from the exercise of like

talents. What would be deemed, therefore, a reasonable compensation in some states, in others would be very unpopular, and might impede the system of which it made a part.

Mr. WILLIAMSON favored the idea. He reminded the House of the prospect of new states to the westward. They would be too poor, would pay little into the common treasury, and would have a different interest from the old states. He did

not think, therefore, that the latter ought to pay the expense of men who would be employed in thwarting their measures and interests.

Mr. GORHAM wished not to refer the matter to the state legislatures, who were always paring down salaries in such a manner as to keep out of office men most capable of executing the functions of them. He thought, also, it would be

wrong to fix the compensation by the Constitution, because we could not venture to make it as liberal as it ought to be, without exciting an enmity against the whole plan. Let the national legislature provide for their own wages from

time to time, as the state legislatures do. He had not seen this part of their power abused, nor did he apprehend an abuse of it.

Mr. RANDOLPH said he feared we were going too far in consulting popular prejudices. Whatever respect might be due to them in lesser matters, or in cases where they formed the permanent character of the people, he thought it neither

incumbent on, nor honorable for, the Convention to sacrifice right and justice to that consideration. If the states were to pay the members of the national legislature, a dependence would be created that would vitiate the whole system.

The whole nation has an interest in the attendance and services of the members. The national treasury, therefore, is the proper fund for supporting them.

Mr. KING urged the danger of creating a dependence on the states by leaving to them the payment of the members of the national legislature. He supposed it would be best to be explicit as to the compensation to be allowed. A reserve on

that point, or a reference to the national legislature of the quantum, would excite greater opposition than any sum that would be actually necessary or proper.

Mr. SHERMAN contended for referring both the quantum, and the payment of it, to the state legislatures.

Mr. WILSON was against fixing the compensation, as circumstances would change, and call for a change of the amount. He thought it of great moment that the members of the national government should be left as independent as possible of

the state governments in all respects.

Mr. MADISON concurred in the necessity of preserving the compensations for the national government independent on the state governments; but at the same time approved of fixing them by the Constitution, which might be done by taking a

standard which would not vary with circumstances. He disliked particularly the policy, suggested by Mr. Williamson, of leaving the members from the poor states beyond the mountains to the precarious and parsimonious support of their

constituents. If the Western States hereafter arising should be admitted into the Union, they ought to be considered as equals and as brethren. If their representatives were to be associated in the common councils, it was of common

concern that such provisions should be made as would invite the most capable and respectable characters into the service.

Mr. HAMILTON apprehended inconvenience from fixing the wages. He was strenuous against making the national council dependent on the legislative rewards of the states. Those who pay are the masters of those who are paid. Payment by the

states would be unequal, as the distant states would have to pay for the same term of attendance, and more days in travelling to and from the seat of government. He expatiated emphatically on the difference between the feelings and

views of the people and the governments of the states, arising from the personal interest and official inducements which must render the latter unfriendly to the general government.

Mr. WILSON moved that the salaries of the first branch “be ascertained by the national legislature and be paid out of the national treasury.”

Mr. MADISON thought the members of the legislature too much interested, to ascertain their own compensation. It would be indecent to put their hands into the public purse for the sake of their own pockets.

On this question, “shall the salaries of the first branch be ascertained by the national legislature?”

New Jersey, Pennsylvania, ay, 2; Massachusetts, Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, no, 7; New York, Georgia, divided.

On the question for striking out “national treasury,” as moved by Mr. Ellsworth,—

Mr. HAMILTON renewed his opposition to it. He pressed the distinction between the state governments and the people. The former would be the rivals of the general government. The state legislatures ought not, therefore, to be the

paymasters of the latter.

Mr. ELLSWORTH. If we are jealous of the state governments, they will be so of us. If, on going home, I tell them we gave the general government such powers because we could not trust you, will they adopt it? And without their

approbation it is a nullity. 129

On the question,—

Massachusetts, * Connecticut, North Carolina, South Carolina, ay, 4; New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no, 5; New York, Georgia, divided.

So it passed in the negative.

On a question for substituting “adequate compensation” in place of “fixed stipends,” it was agreed to, nem. con., the friends of the latter being willing that the practicability of fixing the compensation should be considered hereafter

in forming the details. 130

It was then moved by Mr. BUTLER, that a question be taken on both points jointly, to wit, “adequate compensation to be paid out of the national treasury.” It was objected to as out of order, the parts having been separately decided on.

The president referred the question of order to the house, and it was determined to be in order,—

Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, ay, 6; New York, Pennsylvania, Virginia, Georgia, no, 4; Massachusetts, divided.

The question on the sentence was then postponed by South Carolina, in right of the state. 131

Col. MASON moved to insert “twenty-five years of age as a qualification for the members of the first branch.” He thought it absurd that a man to-day should not be permitted by the law to make a bargain for himself, and to-morrow should

be authorized to manage the affairs of a great nation. It was the more extraordinary, as every man carried with him, in his own experience, a scale for measuring the deficiency of young politicians; since he would, if interrogated, be

obliged to declare that his political opinions at the age of twenty-one were too crude and erroneous to merit an influence on public measures. It had been said, that Congress had proved a good school for our young men. It might be so,

for any thing he knew; but if it were, he chose that they should bear the expense of their own education.

Mr. WILSON was against abridging the rights of election in any shape. It was the same thing whether this were done by disqualifying the objects of choice, or the persons choosing. The motion tended to damp the efforts of genius and of

laudable ambition. There was no more reason for incapacitating youth than age, where the requisite qualifications were found. Many instances might be mentioned of signal services, rendered in high stations to the public, before the age

of twenty-five. The present Mr. Pitt and Lord Bolingbroke were striking instances.

On the question for inserting “twenty-five years of age,”—

Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, ay, 7; Massachusetts, Pennsylvania, Georgia, no, 3; New York, divided. 132

Mr. GORHAM moved to strike out the last member of the third resolution, concerning ineligibility of members of the first branch to office during the term of their membership, and for one year after. He considered it unnecessary and

injurious. It was true, abuses had been displayed in Great Britain; but no one could say how far they might have contributed to preserve the due influence of the government, nor what might have ensued in case the contrary theory had

been tried.

Mr. BUTLER opposed it. This precaution against intrigue was necessary. He appealed to the example of Great Britain; where men get into parliament that they might get offices for themselves or their friends. This was the source of the

corruption that ruined their government.

Mr. KING thought we were refining too much. Such a restriction on the members would discourage merit. It would also give a pretext to the executive for bad appointments, as he might always plead this as a bar to the choice he wished to

have made.

Mr. WILSON was against fettering elections, and discouraging merit. He suggested, also, the fatal consequence, in time of war, of rendering, perhaps, the best commanders ineligible; appealed to our situation during the late war, and

indirectly leading to a recollection of the appointment of the commander-in-chief out of Congress.

Col. MASON was for shutting the door at all events against corruption. He enlarged on the venality and abuses, in this particular, in Great Britain; and alluded to the multiplicity of foreign embassies by Congress. The disqualification

he regarded as a cornerstone in the fabric.

Col. HAMILTON. There are inconveniences on both sides. We must take man as we find him; and if we expect him to serve the public, must interest his passions in doing so. A reliance on pure patriotism had been the source of many of our

errors. He thought the remark of Mr. Gorham a just one. It was impossible to say what would be the effect in Great Britain of such a reform as had been urged. It was known that one of the ablest politicians (Mr. Hume) had pronounced

all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the constitution.

On Mr. Gorham’s motion for striking out “ineligibility,” it was lost by an equal division of the votes,—

Massachusetts, New Jersey, North Carolina, Georgia, ay, 4; Connecticut, Maryland, Virginia, South Carolina, no, 4; New York, Pennsylvania, Delaware, divided.

Adjourned. 133



In Convention. —The third resolution being resumed,—

On the question, yesterday postponed by South Carolina, for agreeing to the whole sentence, “for allowing an adequate compensation, to be paid out of the treasury of the United States, ”

Massachusetts, New Jersey, Pennsylvania, Maryland, Virginia, ay, 5; Connecticut, New York, Delaware, North Carolina, South Carolina, no, 5; Georgia, divided.

So the question was lost, and the sentence not inserted. 134

Gen. PINCKNEY moves to strike out the ineligibility of members of the first branch to offices established “by a particular state.” He argued from the inconvenience to which such a restriction would expose both the members of the first

branch, and the states wishing for their services; and from the smallness of the object to be attained by the restriction. It would seem, from the ideas of some, that we are erecting a kingdom to be divided against itself: he

disapproved such a fetter on the legislature.

Mr. SHERMAN seconds the motion. It would seem that we are erecting a kingdom at war with itself. The legislature ought not to be fettered in such a case. 135

On the question,—

Connecticut, New York, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 8; Massachusetts, Pennsylvania, Delaware, no, 3.

Mr. MADISON renewed his motion, yesterday made and waived, to render the members of the first branch “ineligible during their term of service, and for one year after, to such offices only, as should be established, or the emolument

augmented, by the legislature of the United States during the time of their being members.” He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, and that if the door was shut

against them, it might properly be left open for the appointment of members to other offices, as an encouragement to the legislative service.

Mr. ALEXANDER MARTIN seconded the motion.

Mr. BUTLER. The amendment does not go far enough, and would be easily evaded. 136

Mr. RUTLEDGE was for preserving the legislature as pure as possible, by shutting the door against appointments of its own members to office, which was one source of its corruption.

Mr. MASON. The motion of my colleague is but a partial remedy for the evil. He appealed to him as a witness of the shameful partiality of the legislature of Virginia to its own members. He enlarged on the abuses and corruption in the

British Parliament connected with the appointment of its members. He could not suppose that a sufficient number of citizens could not be found who would be ready, without the inducement of eligibility to offices, to undertake the

legislative service. Genius and virtue, it may be said, ought to be encouraged. Genius, for aught he knew, might; but that virtue should be encouraged by such a species of venality, was an idea that at least had the merit of being new.

Mr. KING remarked that we were refining too much in this business; and that the idea of preventing intrigue and solicitation of offices was chimerical. You say, that no member shall himself be eligible to any office. Will this restrain

him from availing himself of the same means which would gain appointments for himself, to gain them for his son, his brother, or any other object of his partiality? We were losing, therefore, the advantages on one side, without

avoiding the evils on the other.

Mr. WILSON supported the motion. The proper cure, he said, for corruption in the legislature, was to take from it the power of appointing to offices. One branch of corruption would, indeed, remain,—that of creating unnecessary offices,

or granting unnecessary salaries, and for that the amendment would be a proper remedy. He animadverted on the impropriety of stigmatizing with the name of venality the laudable ambition of rising into the honorable offices of the

government,—an ambition most likely to be felt in the early and most incorrupt period of life, and which all wise and free governments had deemed it sound policy to cherish, not to check. The members of the legislature have, perhaps,

the hardest and least profitable task of any who engage in the service of the state. Ought this merit to be made a disqualification?

Mr. SHERMAN observed that the motion did not go far enough. It might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the legislature to the latter. A

new embassy might be established to a new Court, and an ambassador taken from another, in order to create a vacancy for a favorite member. He admitted that inconve niences lay on both sides. He hoped there would be sufficient in

ducements to the public service without resorting to the prospect of desirable offices; and, on the whole, was rather against the motion of Mr. Madison.

Mr. GERRY thought there was great weight in the objection of Mr. Sherman. He added, as another objection against admitting the eligibility of members in any case, that it would produce intrigues of ambitious men for displacing proper

officers, in order to create vacancies for themselves. In answer to Mr. King, he observed, that, although members, if disqualified themselves, might still intrigue and cabal for their sons, brothers, c., yet as their own interests

would be dearer to them than those of their nearest connections, it might be expected they would go greater lengths to promote them.

Mr. MADISON had been led to this motion, as a middle ground between an eligibility in all cases and an absolute disqualification. He admitted the probable abuses of an eligibility of the members to offices, particularly within the gift

of the legislature. He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia Assembly by his colleague, (Col. Mason.) He appealed, however, to him in turn to vouch another fact not less

notorious in Virginia,—that the backwardness of the best citizens to engage in the legislative service gave but too great success to unfit characters. The question was not to be viewed on one side only. The advantages and disadvantages

on both ought to be fairly compared. The objects to be aimed at were, to fill all offices with the fittest characters, and to draw the wisest and most worthy citizens into the legislative service. If, on one hand, public bodies were

partial to their own members, on the other, they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. All who had been concerned in the appointment of strangers, on those recommendations,

must be sensible of this truth. Nor would the partialities of such bodies be obviated by disqualifying their own members. Candidates for office would hover round the seat of government, or be found among the residents there, and

practise all the means of courting the favor of the members. A great proportion of the appointments made by the states were evidently brought about in this way. In the general government, the evil must be still greater, the characters

of distant states being much less known throughout the United States than those of the distant parts of the same state. The elections by Congress had generally turned on men living at the seat of the federal government, or in its

neighborhood. As to the next object, the impulse to the legislative service was evinced by experience to be in general too feeble with those best qualified for it. This inconvenience would also be more felt in the national government

than in the state governments, as the sacrifices required from the distant members would be much greater, and the pecuniary provisions, probably, more disproportionate. It would therefore be impolitic to add fresh objections to the

legislative service by an absolute disqualification of its members. The point in question was, whether this would be an objection with the most capable citizens. Arguing from experience, he concluded that it would. The legislature of

Virginia would probably have been without many of its best members, if in that situation they had been ineligible to Congress, to the government, and other honorable offices of the state.

Mr. BUTLER thought characters fit for office would never be unknown.

Col. MASON. If the members of the legislature are disqualified, still the honors of the state will induce those who aspire to them to enter that service, as the field in which they can best display and improve their talents, and lay

the train for their subsequent advancement.

Mr. JENIFER remarked, that in Maryland the senators, chosen for five years, could hold no other office; and that this circumstance gained them the greatest confidence of the people.

On the question for agreeing to the motion of Mr. Madison,—

Connecticut, New Jersey, ay, 2; New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, 8; Massachusetts, divided.

Mr. SHERMAN moved to insert the words, “and incapable of holding” after the words “ineligible to,” which was agreed to without opposition.

The word “established,” and the words “under the national government,” were struck out of the third resolution.

Mr. SPAIGHT called for a division of the question, in consequence of which it was so put as that it turned on the first member of it, on the ineligibility of members during the term for which they were elected —whereon the states


Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, ay, 8; Pennsylvania, Georgia, no, 2; Massachusetts, divided.

On the second member of the sentence, extending ineligibility of members to one year after the term for which they were elected,—

Col. MASON thought this esential to guard against evasions by resignations, and stipulations for office to be fulfilled at the expiration of the legislative term.

Mr. GERRY had known such a case.

Mr. HAMILTON. Evasions could not be prevented,—as by proxies, by friends holding for a year, and then opening the way, c.

Mr. RUTLEDGE admitted the possibility of evasions, but was for contracting them as far as possible. On the question,—

New York, Delaware, Maryland, South Carolina, ay, 4; Massachusetts, Connecticut, New Jersey, Virginia, North Carolina, Georgia, no, 6; Pennsylvania, divided. 137