University of Virginia Library

Wednesday June 6th. In Committee of the
Whole.

Mr. 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.

Mr. Rutlidge 2ded. the motion.

Mr. Gerry.[61] 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 Massts. 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 agst. men
who are superior to the artifices practised. He was
not disposed to run into extremes. He was as much
principled as ever agst. aristocracy and monarchy.
It was necessary on the one hand that the people
should appoint one branch of the Govt. 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 shd. make the appointment.

Mr. Wilson. He wished for vigor in the Govt., but
he wished that vigorous authority to flow immediately
from the legitimate source of all authority.
The Govt. ought to possess not only 1st. the force, but
2dly. 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 Govt.
than to the State Govts. 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 Govts. the elections ought to be by the people.
If the State Govts. are to be continued, it is necessary
in order to preserve harmony between the National
& State Govtts. that the elections to the former shd. be
made by the latter. The right of participating in
the National Govt. 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 agst. foreign danger, 2 agst. 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 Govt. not being able to
pervade them. He was for giving the General
Govt. power to legislate and execute within a defined
province.

Col. Mason. Under the existing Confederacy,

Congs. 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 Govt. The people will be represented; they
ought therefore to choose the Representatives. The
requisites in actual representation are that the Reps.
should sympathize with their constituents; shd.
think as they think, & feel as they feel; and that for
these purposes shd. even be residents among them.
Much he sd. had been alledged agst. democratic elections.
He admitted that much might be said; but
it was to be considered that no Govt. was free from
imperfections & evils; and that improper elections
in many instances were inseparable from Republican
Govts. 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 wd. not
send to the Natl. 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 Govt. 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 Govt. 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 (Mr. Sherman) had admitted that in a
very small State, faction & oppression wd. 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 Govt. would Admit. This was the only defence
agst. the inconveniences of democracy consistent
with the democratic form of Govt. All civilized
Societies would be divided into different Sects, Factions,
& interests, as they happened to consist of
rich & poor, debtors & creditors, the landed the
manufacturing, the commercial interests, the inhabitants
of this district or that district, the followers
of this political leader or that political leader—
the disciples of this religious Sect or that religious
Sect. In all cases where a majority are united by a
common interest or passion, the rights of the minority
are in danger. What motives are to restrain
them? A prudent regard to the maxim that honesty
is the best policy is found by experience to be as little
regarded by bodies of men as by individuals. Respect
for character is always diminished in proportion
to the number among whom the blame or praise
is to be divided. Conscience, the only remaining tie
is known to be inadequate in individuals: In large
numbers, little is to be expected from it. Besides,
Religion itself may become a motive to persecution
& oppression. These observations are verified by
the Histories of every country antient & modern.
In Greece & Rome the rich & poor, the Creditors &
debtors, as well as the patricians & plebeians alternately
oppressed each other with equal unmercifulness.
What a source of oppression was the relation
between the parent cities of Rome, Athens & Carthage,
& their respective provinces; the former
possessing the power, & the latter being sufficiently
distinguished to be separate objects of it? Why was
America so justly apprehensive of Parliamentary injustice?
Because G. Britain had a separate interest
real or supposed, & if her authority had been admitted,
could have pursued that interest at our expence.
We have seen the mere distinction of colour
made in the most enlightened period of time, a
ground of the most oppressive dominion ever exercised
by man over man. What has been the source
of those unjust laws complained of among ourselves?
Has it not been the real or supposed interest of the
major number? Debtors have defrauded their creditors.
The landed interest has borne hard on the
mercantile interest. The Holders of one species of
property have thrown a disproportion of taxes on
the holders of another species. The lesson we are to
draw from the whole is that where a majority are
united by a common sentiment, and have an opportunity,
the rights of the minor party become insecure.
In a Republican Govt. 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 1st. 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 2d place that in case they shd have such
an interest, they may not be apt to unite in the
pursuit of it. It was incumbent on us then to try
this remedy, and with that view to frame a republican
system on such a scale & in such a form as will
controul all the evils wch. have been experienced.

Mr. Dickinson considered it essential that one
branch of the Legislature shd. be drawn immediately
from the people; and as expedient that the other shd.
be chosen by the Legislatures of the States. This
combination of the State Govts. with the national
Govt. 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 Govt. but
for leaving the States a considerable agency in the

System. The objection agst. 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.

Mr. Read. Too much attachment is betrayed to
the State Governts. We must look beyond their continuance.
A national Govt. 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 agst. patching up the old federal System: he
hoped the idea wd. 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 Govt. 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 Genl. Govt. The aversion lies among interested
men who possess their confidence.

Mr. Pierce[62] was for an election by the people as to
the 1st. branch & by the States as to the 2d. branch;

by which means the Citizens of the States wd. be represented
both individually & collectively.

General Pinkney wished to have a good National
Govt. & 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 wd. be a better
guard agst. 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 Govt., if excluded
from a participation in it. The Idea of abolishing
these Legislatures wd. 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 Govts. ought to be abandoned.
He saw no incompatibility between the
national & State Govts. 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 1st. branch by the

State Legislatures as moved by Mr. Pinkney: it was
negatived:

Mass. no. Ct. ay. N. Y. no. N. J. ay. Pa. no.
Del. no. Md. no. Va. no. N. C. no. S. C. ay.
Geo. no.

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 reinforcing
the Executive with the influence of that Department.

Mr. Madison 2ded. the motion. He observed that
the great difficulty in rendering the Executive competent
to its own defence arose from the nature of
Republican Govt. 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 agst. betraying the national interest, which
appertain to an hereditary magistrate. In a Republic
personal merit alone could be the ground of
political exaltation, but it would rarely happen that
this merit would be so pre-eminent as to produce
universal acquiescence. The Executive Magistrate
would be envied & assailed by disappointed competitors:
His firmness therefore wd. need support.
He would not possess those great emoluments from
his station, nor that permanent stake in the public
interest which wd. place him out of the reach of
foreign corruption. He would stand in need therefore
of being controuled as well as supported. An

association of the Judges in his revisionary function
wd. both double the advantage and diminish the danger.
It wd. also enable the Judiciary Department
the better to defend itself agst. Legislative encroachments.
Two objections had been made 1st. 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. 2dly. that the Judiciary Departmt.
ought to be separate & distinct from the
other great Departments. The 1st. objection had
some weight; but it was much diminished by reflecting
that a small proportion of the laws coming
in question before a Judge wd. be such wherein he
had been consulted; that a small part of this proportion
wd. be so ambiguous as to leave room for his
prepossessions; and that but a few cases wd. probably
arise in the life of a Judge under such ambiguous
passages. How much good on the other hand
wd. proceed from the perspicuity, the conciseness,
and the systematic character wch. the Code of laws wd.
receive from the Judiciary talents. As to the 2d. 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 wd. in truth however be
no improper mixture of these distinct powers in the
present case. In England, whence the maxim itself
had been drawn, the Executive had an absolute
negative on the laws; and the Supreme tribunal of
Justice (the House of Lords) formed one of the other
branches of the Legislature. In short whether the
object of the revisionary power was to restrain the
Legislature from encroaching on the other co-ordinate
Departments, or on the rights of the people at
large; or from passing laws unwise in their principle,
or incorrect in their form, the utility of annexing
the wisdom and weight of the Judiciary to the Executive
seemed incontestable.

Mr. Gerry thought the Executive, whilst standing
alone wd. be more impartial than when he cd. be covered
by the sanction & 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. Pinkney had been at first in favor of joining
the heads of the principal departmts. 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 agst. Legislative usurpations
on it. The purse & the sword ought never to get
into the same hands whether Legislative or Executive.

Mr. Dickinson. Secrecy, vigor & despatch are
not the principal properties reqd. 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.

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

On the question for joining the Judges to the Executive
in the re visionary business,

Mass. no. Cont. ay. N. Y. ay. N. J. no. Pa. no.
Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo.
no.

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

The Come rose & the House adjd. to 11 OC.