The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 12

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

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

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

M^r Wilson would not have spoken again, but for what had fallen from Mr.

Read; namely, that the idea of preserving the State Gov^{ts} ought to be abandoned. He saw no incompatibility between the national & State Gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

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

Ma.s.s. no. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no.

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

M^r Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive"

the words "with a convenient number of the national Judiciary;"

remarking the expediency of reinforcing the Executive with the influence of that Department.

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

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

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

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

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

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

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

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

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

Ma.s.s. no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d no.

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

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

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

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

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

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

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

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

M^r d.i.c.kinson had two reasons for his motion. 1, because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode. The greatness of the number was no objection with him.

He hoped there would be 80 and twice 80. of them. If their number should be small, the popular branch could not be balanced by them. The legislature of a numerous people ought to be a numerous body.

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

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

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

M^r Morris 2^{ded} him.

M^r Read proposed "that the Senate should be appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures." He said he thought it his duty, to speak his mind frankly. Gentlemen he hoped would not be alarmed at the idea.

Nothing short of this approach towards a proper model of Government would answer the purpose, and he thought it best to come directly to the point at once.--His proposition was not seconded nor supported.

M^r Madison, if the motion (of Mr. d.i.c.kinson) should be agreed to, we must either depart from the doctrine of proportional representation; or admit into the Senate a very large number of members. The first is inadmissible, being evidently unjust. The second is inexpedient. The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct. He differed from M^r D. who thought that the additional number would give additional weight to the body. On the contrary it appeared to him that their weight would be in an inverse ratio to their number. The example of the Roman Tribunes, was applicable. They lost their influence and power, in proportion as their number was augmented.

The reason seemed to be obvious: They were appointed to take care of the popular interests & pretensions at Rome, because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become a prey to their aristocratic adversaries. The more the representatives of the people therefore were multiplied, the more they partook of the infirmities of their const.i.tuents, the more liable they became to be divided among themselves either from their own indiscretions or the artifices of the opposite faction, and of course the less capable of fulfilling their trust. When the weight of a set of men depends merely on their personal characters; the greater the number the greater the weight. When it depends on the degree of political authority lodged in them the smaller the number the greater the weight. These considerations might perhaps be combined in the intended Senate; but the latter was the material one.

M^r Gerry. 4 modes of appointing the Senate have been mentioned. 1. by the 1^{st} branch of the National Legislature. This would create a dependance contrary to the end proposed. 2. by the National Executive.

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

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

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

M^r Wilson. The subject it must be owned is surrounded with doubts and difficulties. But we must surmount them. The British Governm^t cannot be our model. We have no materials for a similar one. Our manners, our laws, the abolition of entails and of primogeniture, the whole genius of the people, are opposed to it. He did not see the danger of the States being devoured by the Nation^l Gov^t. On the contrary, he wished to keep them from devouring the national Gov^t. He was not however for extinguis.h.i.+ng these planets as was supposed by Mr. D.--neither did he on the other hand, believe that they would warm or enlighten the Sun.

Within their proper orbits they must still be suffered to act for subordinate purposes, for which their existence is made essential by the great extent of our Country. He could not comprehend in what manner the landed interest w^d be rendered less predominant in the Senate, by an election through the medium of the Legislatures than by the people themselves. If the Legislatures, as was now complained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views. He was for an election by the people in large districts which w^d be most likely to obtain men of intelligence & uprightness; subdividing the districts only for the accommodation of voters.

M^r Madison could as little comprehend in what manner family weight, as desired by M^r D. would be more certainly conveyed into the Senate through elections by the State Legislatures, than in some other modes.

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

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

M^r Gerry insisted that the commercial & monied interest w^d be more secure in the hands of the State Legislatures, than of the people at large. The former have more sense of character, and will be restrained by that from injustice. The people are for paper money when the Legislatures are ag^{st} it. In Ma.s.s^{ts} the County Conventions had declared a wish for a _depreciating_ paper that w^d sink itself.

Besides, in some States there are two Branches in the Legislature, one of which is somewhat aristocratic. There w^d therefore be so far a better chance of refinement in the choice. There seemed, he thought to be three powerful objections ag^{st} elections by districts, 1. it is impracticable; the people cannot be brought to one place for the purpose; and whether brought to the same place or not, numberless frauds w^d be unavoidable. 2. small States forming part of the same district with a large one, or large part of a large one, w^d have no chance of gaining an appointment for its citizens of merit. 3 a new source of discord w^d be opened between different parts of the same district.

M^r Pinkney thought the 2^d branch ought to be permanent & independent; & that the members of it w^d be rendered more so by receiving their appointment from the State Legislatures. This mode w^d avoid the rivals.h.i.+ps & discontents incident to the election by districts. He was for dividing the States into three cla.s.ses according to their respective sizes, & for allowing to the 1^{st} cla.s.s three members, to the 2^d two, & to the 3^d one.

On the question for postponing M^r d.i.c.kinson's motion referring the appointment of the Senate to the State Legislatures, in order to consider M^r Wilson's for referring it to the people.

Ma.s.s. no. Con^t no. N. Y. no. N. J. no. P^a ay. Del. no. M^d no.

V^a no. N. C. no. S. C. no. Geo. no.

Col. Mason. Whatever power may be necessary for the Nat^l Gov^t a certain portion must necessarily be left in the States. It is impossible for one power to pervade the extreme parts of the U. S. so as to carry equal justice to them. The State Legislatures also ought to have some means of defending themselves ag^{st} encroachments of the Nat^l Gov^t.

In every other department we have studiously endeavoured to provide for its self-defence. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than the giving them some share in, or rather to make them a const.i.tuent part of, the Nat^l Establishment. There is danger on both sides no doubt; but we have only seen the evils arising on the side of the State Gov^{ts}.

Those on the other side remain to be displayed. The example of Cong^s does not apply. Cong^s had no power to carry their acts into execution, as the Nat^l Gov^t will have.