Debates in the Federal Convention of 1787
by James Madison
Monday, July 23
The seventeenth Resolution, that provision ought to be made for future amendments of the Articles of the Union, was agreed to, nem. con.
The eighteenth Resolution, requiring the Legislative, Executive and Judiciary of the States to be bound by oath to support the Articles of Union, was taken into consideration.
Mr. WILLIAMSON suggests, that a reciprocal oath should be required from the National officers, to support the Governments of the States.
Mr. GERRY moved to insert, as an amendment, that the oath of the officers of the National Government also should extend to the support of the National Government, which was agreed to, nem. con.
Mr. WILSON said, he was never fond of oaths, considering them as a left-handed security only. A good government did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing government, in case future alterations should be necessary; and prove an obstacle to the seventeenth Resolution, just agreed to.
Mr. GORHAM did not know that oaths would be of much use; but could see no inconsistency between them and the seventeenth Resolution, or any regular amendment of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution could never be regarded as a breach of the Constitution, or of any oath to support it.
Mr. GERRY thought, with Mr. GORHAM, there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side, he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of, the general system, and had, in all cases of interference given a preference to the State Governments. The proposed oath will cure that error.
The Resolution (the eighteenth) was agreed to, nem con.
The nineteenth Resolution, referring the new Constitution to Assemblies to be chosen by the people, for the express purpose of ratifying it, was next taken into consideration.
Colonel MASON considered a reference of the plan to the authority of the people, as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions — he knew there was no power in some of them — that could be competent to this object. Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government. Another strong reason was, that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors; and the National Government would stand in each State on the weak and tottering foundation of an act of Assembly. There was a remaining consideration, of some weight. In some of the States, the governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit., that opposition as well from the States as from individuals, will be made to the system to be proposed. Will it not then be highly imprudent to furnish any unnecessary pretext, by the mode of ratifying it? Added to other objections against a ratification by the Legislative authority only, it may be remarked, that there have been instances in which the authority of the common law has been set up in particular States against that of the Confederation, which has had no higher sanction than Legislative ratification. Whose opposition will be most likely to be excited against the system? That of the local demagogues who will be degraded by it, from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan; and which every member will find to have taken place in his own, if he will compare his present opinions with those he brought with him into the Convention. It is of great importance, therefore, that the consideration of this subject should be transferred from the Legislatures, where this class of men have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of consideration, that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon, to refer the question to the people.
Mr. GERRY. The arguments of Colonel MASON and Mr. RANDOLPH prove too much. They prove an unconstitutionality in the present Federal system, and even in some of the State Governments. Inferences drawn from such a source must be inadmissible. Both the State Governments and the Federal Government have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last Article of it, authorizing alterations, must consequently be so as well as the others; and every thing done in pursuance of the article, must have the same high authority with the article. Great confusion, he was confident, would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose, that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
Mr. GORHAM was against referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose will discuss the subject more candidly than members of the Legislature, who are to lose the power which is to be given up to the General Government. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult, in these cases, to get the plan through the Legislatures, than through a Convention. 3. In the States, many of the ablest men are excluded from the Legislatures, but may be elected into a convention. Among these may be ranked many of the clergy, who are generally friends to good government. Their services were found to be valuable in the formation and establishment of the Constitution of Massachusetts. 4. The Legislatures will be interrupted with a variety of little business; by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system. 5. If the last article of the confederation is to be pursued, the unanimous concurrence of the States will be necessary. But will any one say that all the States are to suffer themselves to be ruined, if Rhode Island should persist in her opposition to general measures? Some other States might also tread in her steps. The present advantage, which New York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable that she will be of the number. It would, therefore, deserve serious consideration, whether provision ought not to be made for giving effect to the system, without waiting for the unanimous concurrence of the States.
Mr. ELLSWORTH. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as would be competent. He thought more was to be expected from the Legislatures, than from the people. The prevailing wish of the people in the Eastern States is, to get rid of the public debt; and the idea of strengthening the National Government carries with it that of strengthening the public debt. It was said by Colonel MASON, — in the first place, that the Legislatures have no authority in this case; and in the second, that their successors, having equal authority, could rescind their acts. As to the second point he could not admit it to be well founded. An act to which the States, by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the first point, he observed that a new set of ideas seemed to have crept in since the Articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congress applied on subsequent occasions for further powers? To the Legislatures, not to the people. The fact is, that we exist at present, and we need not inquire how, as a federal society, united by a charter, one article of which is, that alterations therein may be made by the Legislative authority of the States. It has been said, that if the Confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer, that if such were the urgency and necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
Mr. WILLIAMSON thought the Resolution (the nineteenth) so expressed, as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought, too, that Conventions were to be preferred, as more likely to be composed of the ablest men in the States.
Mr. GOUVERNEUR MORRIS considered the inference of Mr. ELLSWORTH from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non-sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable to the Federal compact would clearly not be valid. The Judges would consider them as null and void. Whereas, in case of an appeal to the people of the United States, the supreme authority, the Federal compact may be altered by a majority of them, in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendment moved by Mr. ELLSWORTH erroneously supposes, that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.
Mr. KING thought with Mr. ELLSWORTH that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people. He thought with Mr. ELLSWORTH, also, that the plea of necessity was as valid in the one case as the other. At the same time, he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution, as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections, made in the State of New York to granting powers to Congress, one had been, that such powers as would operate within the States could not be reconciled to the Constitution, and therefore were not grantable by the Legislative authority. He considered it as of some consequence, also, to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support and maintain the existing Constitutions.
Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions; and it would be a novel and dangerous doctrine, that a Legislature could change the Constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the Federal compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a pre-existing law might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a Constitution established by the people themselves, would be considered by the Judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes, in point of expediency, he thought all the considerations which recommended this Convention, in preference to Congress, for proposing the reform, were in favor of State Conventions, in preference to the Legislatures for examining and adopting it.
On the question on Mr. ELLSWORTH’S motion to refer the plan to the Legislatures of the States, — Connecticut, Delaware, Maryland, aye — 3; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no — 7.
Mr. GOUVERNEUR MORRIS moved, that the reference of the plan be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same. Not seconded.
On the question for agreeing to the nineteenth Resolution, touching the mode of ratification as reported from the Committee of the Whole, viz, to refer the Constitution, after the approbation of Congress, to assemblies chosen by the people, — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye — 9; Delaware, no — 1.
Mr. ELLSWORTH said he had always approved of voting in that mode.
Mr. GOUVERNEUR MORRIS moved to fill the blank with three. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum, the power would be lodged in fourteen members, which was too small a number for such a trust.
Mr. GORHAM preferred two to three members for the blank. A small number was most convenient for deciding on peace and war, &c., which he expected would be vested in the second branch. The number of States will also increase. Kentucky, Vermont, the Province of Maine, and Franklin, will probably soon be added to the present number. He presumed also that some of the largest states would be divided. The strength of the General Government will be, not in the largeness, but the smallness, of the States.
Col. MASON thought three from each State, including new States, would make the second branch too numerous. Besides other objections, the additional expense ought always to form one, where it was not absolutely necessary.
Mr. WILLIAMSON. If the number be too great, the distant States will not be on an equal footing with the nearer States. The latter can more easily send and support their ablest citizens. He approved of the voting per capita.
On the question for filling the blank with “three,” — Pennsylvania, aye — 1; New Hampshire, Massachusetts, Connecticut, Delaware, Virginia, North Carolina, South Carolina, Georgia, no — 8.
On the question for filling it with “two,” — agreed to, nem. con.
Mr. L. MARTIN was opposed to voting per capita, as departing from the idea of the States being represented in the second branch.
Mr. CARROLL was not struck with any particular objection against the mode; but he did not wish so hastily to make so material an innovation.
On the question on the whole motion, viz.: “the second branch to consist of two members from each State, and to vote per capita,” — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye — 9; Maryland, no — 1.
Mr. HOUSTON and Mr. SPAIGHT moved, “that the appointment of the Executive by Electors chosen by the Legislatures of the States,” be reconsidered. Mr. HOUSTON urged the extreme inconveniency and the considerable expense of drawing together men from all the States for the single purpose of electing the chief magistrate.
On the question, which was put without debate, — New Hampshire, Massachusetts, Connecticut, Delaware, North Carolina, South Carolina, Georgia, aye — 7; Pennsylvania, Maryland, Virginia, no — 3.
Ordered, that tomorrow be assigned for the reconsideration; — Connecticut and Pennsylvania, no; all the rest, aye.
Mr. GERRY moved, that the proceedings of the Convention for the establishment of a National Government (except the part relating to the Executive) be referred to a Committee to prepare and report a Constitution conformable thereto.
General PINCKNEY reminded the Convention, that if the Committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their report.
The appointment of a Committee, as moved by Mr. GERRY, was agreed to, nem. con.
On the question, Shall the Committee consist of ten members, one from each State present? — all the States were no, except Delaware, aye.
Shall it consist of seven members? — New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, aye — 5; Pennsylvania, Delaware, Virginia, North Carolina, Georgia, no — 5.
The question being lost by an equal division of votes, it was agreed, nem. con., that the Committee should consist of five members, to be appointed to-morrow.