Debates in the Federal Convention of 1787
by James Madison
Wednesday, June 6
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.
General 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, aye — 3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, no — 8.
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 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 pre-eminence 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 pre-eminent 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 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 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.
Colonel 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.
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, aye — 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 re-consideration 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.