The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 11

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

On the question, Ma.s.s. ay. Con^t no. N. Y. ay. N. J.[65] ay. Pa.

ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. G. ay.

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

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

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

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

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

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

Ma.s.sachusetts divided.

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

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

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

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

M^r King supposed that the last article of y^e Confed^n Rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since _impliedly_ given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it, than thro' the Legislatures where there are several branches.

The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed.

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

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

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

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

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

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

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

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

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

M^r d.i.c.kinson 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 inst.i.tute the latter.

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

Ma.s.s^{ts} divided. Con^t ay. N. Y. div^d. N. J. ay. P^a no.

Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.

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

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

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

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

Ma.s.s. ay. C^t no. N. Y. div^d. N. J.[67] ay. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

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

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

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

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

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

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

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

M^r Wilson. He wished for vigor in the Gov^t, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Gov^t ought to possess not only 1^{st} the _force_, but 2^{dly} the _mind or sense_ of the people at large. The Legislature ought to be the most exact transcript of the whole Society.

Representation is made necessary only because it is impossible for the people to act collectively. The opposition was to be expected he said from the _Governments_, not from the Citizens of the States. The latter had parted as was observed (by M^r King) with all the necessary powers; and it was immaterial to them, by whom they were exercised, if well exercised. The State officers were to be the losers of power. The people he supposed would be rather more attached to the national Gov^t than to the State Gov^{ts} as being more important in itself, and more flattering to their pride. There is no danger of improper elections if made by _large_ districts. Bad elections proceed from the smallness of the districts which give an opportunity to bad men to intrigue themselves into office.

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

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

M^r Madison considered an election of one branch at least of the Legislature by the people immediately, as a clear principle of free Gov^t and that this mode under proper regulations had the additional advantage of securing better representatives, as well as of avoiding too great an agency of the State Governments in the General one. He differed from the member from Connecticut (Mr. Sherman) in thinking the objects mentioned to be all the princ.i.p.al ones that required a National Gov^t.

Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than anything else, produced this convention. Was it to be supposed that republican liberty could long exist under the abuses of it practised in some of the States.

The gentleman (M^r Sherman) had admitted that in a very small State, faction & oppression w^d prevail. It was to be inferred then that wherever these prevailed the State was too small. Had they not prevailed in the largest as well as the smallest tho' less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature of the Gov^t would Admit. This was the only defence ag^{st} the inconveniences of democracy consistent with the democratic form of Gov^t. All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader--the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or pa.s.sion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals.

Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. These observations are verified by the Histories of every country antient & modern. In Greece & Rome the rich & poor, the Creditors & debtors, as well as the patricians & plebeians alternately oppressed each other with equal unmercifulness.

What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces; the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Gov^t the majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1^{st} place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2^d place that in case they sh^d have such an interest, they may not be apt to unite in the pursuit of it. It was inc.u.mbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils w^{ch} have been experienced.

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

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