The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 13

The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 13

On M^r d.i.c.kinson's motion for an appointment of the Senate by the State Legislatures,

Ma.s.s. ay. C^t ay. N. Y. ay. P^a ay. Del. ay. M^d ay. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

M^r Gerry gave notice that he w^d tomorrow move for a reconsideration of the mode of appointing the Nat^l Executive in order to subst.i.tute an appointm^t by the State Executives.

The Committee rose & The House adj^d.

FRIDAY JUNE 8^{TH} IN COMMITTEE OF THE WHOLE.

On a reconsideration of the clause giving the Nat^l Legislature a negative on such laws of the States as might be contrary to the articles of Union, or Treaties with foreign nations,

M^r Pinkney moved "that the National Legislature sh^d have authority to negative all laws which they sh^d 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 w^d 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 Gov^t; that under the British Gov^t the negative of the Crown had been found beneficial, and the _States_ are more one nation now, than the _Colonies_ were then.

M^r 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 & 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 w^d lie 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 ag^{st} Ma.s.s^{ts} abetted perhaps by several of her neighbours? It w^d 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 Gov^t for the U. States formed on the supposed practicability of using force ag^{st} the unconst.i.tutional proceedings of the States, w^d prove as visionary & fallacious as the Gov^t of Cong^s. The negative w^d render the use of force unnecessary. The States c^d of themselves pa.s.s 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 w^d only be a fresh source of contention between the two authorities. In a word, to recur to the ill.u.s.trations borrowed from the planetary system. This prerogative of the General Gov^t, is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.

M^r Williamson was ag^{st} giving a power that might restrain the States from regulating their internal police.

M^r Gerry c^d not see the extent of such a power, and was ag^{st} every power that was not necessary. He thought a remonstrance ag^{st} unreasonable acts of the States w^d reclaim them. If it sh^d 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, Ma.s.sachusetts was then for inserting the power of emitting paper money am^g the exclusive powers of Congress. He observed that the proposed negative w^d extend to the regulations of the Militia, a matter on which the existence of a State might depend. The Nat^l 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 eno' 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 partic.i.p.ate in the negative on the will of the other States?

M^r 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 sh^d be made for that purpose.

M^r 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 & steady eye, is right. There is no instance in which the laws say that the individual sh^d be bound in one case, & at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual person 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 Nat^l Gov^t? Among the first sentiments expressed in the first Cong^s one was that Virg^a is no more, that Ma.s.s^{ts} is no [more], that P^a is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Gov^{ts} formed than their jealousy & ambition began to display themselves. Each endeavoured 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 thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul 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?

M^r d.i.c.kenson deemed it impossible to draw a line between the cases proper & 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 Nat^l Gov^t 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.

M^r Bedford. In answer to his colleague's question, where w^d 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 1/90 for its share in the General Councils, whilst P^a & V^a would possess 1/3 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 shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the prinple 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 P^a & V^a by the conduct of their deputies wished to provide a system in which they would have an enormous & 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?

M^r 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 Nat^l Gov^t into each State so far as to give a temporary a.s.sent 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 & expensive branch therefore might not be obliged to sit constantly. He asked M^r B. what would be the consequence to the small States of a dissolution of the Union w^{ch} seemed likely to happen if no effectual subst.i.tute was made for the defective System existing, and he did not conceive any effectual system could be subst.i.tuted on any other basis than that of a proportional suffrage? If the large States possessed the Avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Gen^l Gov^t was withdrawn.

M^r Butler was vehement ag^{st} 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 (M^r P. & M^r M.) Ma.s.s. ay. Con^t no. N. Y. no. N. J. no.

P^a ay. Del. div^d. M^r Read & M^r d.i.c.kenson ay. M^r Bedford & M^r Ba.s.set no. Mary^d no. V^a ay. M^r R. M^r Mason no. M^r Blair, Doc^r M^c C^g M^r M. ay. Gen^l W. not consulted. N. C. no. S. C. no. Geo no.

On motion of M^r Gerry and M^r King tomorrow was a.s.signed for reconsidering the mode of appointing the National Executive: the reconsideration being voted for by all the States except Connecticut & N. Carolina.

M^r Pinkney and M^r Rutlidge moved to add to the Resol^n 4. agreed to by the Com^e the following, viz. "that the States be divided into three cla.s.ses, the 1^{st} cla.s.s to have 3 members, the 2^d two, & the 3^d one member each, that 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 ent.i.tled to." The Committee then rose and the House adjourned.

SAt.u.r.dAY JUNE 9^{TH}[71] MR. LUTHER MARTIN FROM MARYLAND TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE.

[71] Edward Carrington wrote to Jefferson from New York, June 9, 1787:

"The debates and proceedings of the Convention are kept in profound secrecy--opinions of the probable result of their deliberations can only be formed from the prevailing impressions of men of reflection and understanding--these are reducible to two schemes--the first, a consolidation of the whole Empire into one republic, leaving in the States nothing more than subordinate courts for facilitating the administration of the Laws--the second an invest.i.ture of the foederal sovereignty with full and independent authority as to the Trade, Revenues, and forces of the union, and the rights of peace and war, together with a negative upon all the acts of the State legislatures.

The first idea, I apprehend, would be impracticable, and therefore do not suppose it can be adopted--general Laws through a Country embracing so many climates, productions, and manners as the United States, would operate many oppressions & a general legislature would be found incompetent to the formation of local ones, as a majority would in every instance, be ignorant of, and unaffected by the objects of legislation.... Something like the second will probably be formed--indeed I am certain that nothing less than what will give the foederal sovereignty a compleat controul over the state Governments, will be thought worthy of discussion--such a scheme constructed upon well adjusted principles would certainly give us stability and importance as a nation, and if the Executive powers can be sufficiently checked, must be eligible--unless the whole has a decided influence over the parts, the constant effort will be to resume the delegated powers, and there cannot be an inducement in the foederal sovereignty to refuse its a.s.sent to an innocent act of a State.... The Eastern opinions are for a total surrender of the state Sovereignties, and indeed some amongst them go to a monarchy at once--they have verged to anarchy, while to the southward we have only felt an inconvenience, and their proportionate disposition to an opposite extreme is a natural consequence."--_Jeff. MSS._

M^r 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 appointm^t should be made by the Nat^l Legislature, it would lessen that independence of the Executive which ought to prevail, would give birth to intrigue and corruption between the Executive & 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 a.n.a.logous to the principle observed in electing the other branches of the Nat^l Gov^t; the first branch being chosen by the _people_ of the States, & the 2^d by the Legislatures of the States, he did not see any objection ag^{st} 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.

M^r Randolph urged strongly the inexpediency of M^r Gerry's mode of appointing the Nat^l Executive. The confidence of the people would not be secured by it to the Nat^l magistrate. The small States would lose all chance of an appointm^t 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 const.i.tutional 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 Nat^l Executive thus chosen will not be likely to defend with becoming vigilance & firmness the National rights ag^{st} State encroachments. Vacancies also must happen. How can these be filled? He could not suppose either that the Executives would feel the interest in supporting the Nat^l 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 Nat^l Executive to the State Executives as prop^d by M^r Gerry Ma.s.s^{ts} no. Con^t no.

N. Y. no. N. J. no. P^a no. Del. div^d. M^d no. V^a no. S. C. no.

Geo. no.[72]

[72] "Carried against the motion, 10 noes, and Delaware divided."--Yates, _Secret Proceedings_, etc., 111. The Journal also includes North Carolina among the noes.--_Journal of the Federal Convention_, 110.

M^r Patterson moves that the Committee resume the clause relating to the rule of suffrage in the Nat^l Legislature.

M^r Brearly[73] seconds him. He was sorry he said that any question on this point was brought into view. It had been much agitated in Cong^s 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 subst.i.tution 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 Cong^s, Virg^a would have 16 votes, and Georgia but one. A like proportion to the others will make the whole number ninety. There will be 3 large states, and 10 small ones. The large States by which he meant Ma.s.s^{ts} Pen^a & Virg^a will carry every thing before them. It had been admitted, and was known to him from facts within N. Jersey that where large & small counties were united into a district for electing representatives for the district, the large counties always carried their point, and Consequently that the large States would do so. Virg^a 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 Virg^a. He would not say it was.

What remedy then? One only, that a map of the U. S. be spread out, that all the existing boundaries be erased, and that a new part.i.tion of the whole be made into 13 equal parts.

[73] "Mr. Brearly is a man of good, rather than of brilliant parts. He is a Judge of the Supreme Court of New Jersey, and is very much in the esteem of the people. As an Orator he has little to boast of, but as a Man he has every virtue to recommend him. Mr. Brearly is about 40 years of age."--Pierce's Notes, _Am. Hist. Rev._, iii., 327.

M^r Patterson considered the proposition for a proportional representation as striking at the existence of the lesser States. He w^d 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 Cong^s that this act was recited in several of the Commissions, particularly that of Ma.s.s^{ts} 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. We ought to keep within its limits, or we should be charged by our Const.i.tuents with usurpation, that the people of America were sharpsighted 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 Gov^t 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 & sovereignty supposes equality. If we are to be considered as a nation, all State distinctions must be abolished, the whole must be thrown into hotchpot, and when an equal division is made, then there may be fairly an equality of representation. He held up Virg^a Ma.s.s^{ts} & P^a as the three large States, and the other ten as small ones; repeating the calculations of M^r Brearly, as to the disparity of votes which w^d 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 rateable property of A was to that of B as 40 to 1, ought A for that reason to have 40 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 than B so he ought to contribute more for the common protection. The same may be said of a large State w^{ch} 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 & some others that America should be represented in the British Parl^t and then be bound by its laws. America could not have been ent.i.tled to more than 1/3 of the n^o of Representatives which would fall to the share of G. B.

Would American rights & interests have been safe under an authority thus const.i.tuted? It has been said that if a Nat^l Gov^t 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 chuse 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 chuse 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 heretofore by M^r 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. N.

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.

M^r Wilson, hoped if the Confederacy should be dissolved, that a _majority_, that 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 n^o of representatives, and different numbers of people different numbers of representatives. This principle had been improperly violated in the Confederation, owing to the urgent circ.u.mstances of the time. As to the case of A. & B. stated by M^r 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 were to form the ratio it would be the same. M^r P. admitted persons, not property to be the measure of suffrage. Are not the Citizens of Pen^a equal to those of N. Jersey? does it require 150 of the former to balance 50 of the latter? Representatives of different districts ought clearly to hold the same proportion to each other, as their respective Const.i.tuents hold to each other. If the small States will not confederate on this plan, Pen^a & 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 can not. As little can a Sovereign State, when it becomes a member of a federal govern^t. If N. J. will not part with her sovereignty it is vain to talk of Gov^t. A new part.i.tion of the States is desirable, but evidently & totally impracticable.

M^r Williamson ill.u.s.trated 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 M^r Patterson hoped that as so much depended on it, it might be thought best to postpone the decision till tomorrow, which was done, nem. con.

The Com^e rose & the House adjourned.

MONDAY, JUNE 11^{TH} M^R ABRAHAM BALDWIN FROM GEORGIA TOOK HIS SEAT. IN COMMITTEE OF THE WHOLE.

The clause concerning the rule of suffrage in the Nat^l Legislature postponed on Sat.u.r.day was resumed.

M^r Sherman proposed that the proportion of suffrage in the 1^{st} 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 Const.i.tution, and hence they have an equal vote with the House of Commons that they may be able to defend their rights.

M^r Rutlidge proposed that the proportion of suffrage in the 1^{st} branch should be according to the quotas of contribution. The justice of this rule he said could not be contested. M^r Butler urged the same idea: adding that money was power; and that the States ought to have weight in the Gov^t in proportion to their wealth.

M^r King & M^r Wilson,[74] 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.