Documents Illustrative of the Formation of the Union of the American States

NOTES OF RUFUS KING IN THE FEDERAL CONVENTION OF 1787 1

Selected, Arranged, and Indexed by Charles C. Tansill

Among the manuscripts in the handwriting of Rufus King is one containing an abstract of a portion of the debates in the Convention for the formation of the Constitution, which appears to have been made as the debate proceeded. The copy was written out, nearly verbatim, by him, somewhere about 1818-212 (for the paper bears the watermark of 1818), from rough notes taken at the time. It will be observed that he does not reproduce his own remarks, except in speeches on the powers of the Convention. There is no new information as to the proceedings, or the opinions of members of the Convention, but the reports previously published in the Madison and Yates papers are corroborated in these.

THURSDAY, MAY 31

House of Representatives to be elected by the People. Gerry opposes. Appointment by the State Legislature preferable, because the People want information.

Mason, Virginia—in favor of popular choice, because the first Branch is to represent the People. We must not go too far. A portion of Democracy should be preserved; our own children in a short time will be among the general mass.

Wilson of Penn. agrees with Mason. We ought to adopt measures to secure the popular confidence, and to destroy the Rivalry between the Genl. and State Governments; in this way both will proceed immediately from the People.

Madison agrees with Wilson. The measure immediately introduces the People, and will naturally inspire the affection for the Genl. Govt. that exists toward our own offspring. A legislative appointment will remove the Govt. too far from the People. In Maryland the Senate is two Removes from the People, and a Deputy appointed by them would be three Removes off; and if the first Branch appoint the second, the Deputy wd. be four Removes—and if the Legislature of the U. S. appoint the President or Executive, the Executive wd. be five Removes from the People. If the Election be made by the People in large Districts, there will be no danger of Demagogues.

Measure carried. That first Br. be elected by People of the several States. Mass. N. Y. Penn. Virginia. N. Car. & Georgia-aye. Con. & Del. divided N. Jersey & S. Carolina,—No.

Friday June 1. Com. of the whole. Executive power to be in one person. Motion by Wilson Penn. Seconded by Chs. Pinckney So. Car. Rutledge in favor of the motion. Sherman preferred leaving the number to the Legislature.

Wilson. An Executive should possess the Power of secresy, vigour & Dispatch, and so constituted as to be responsible. Executive powers are intended for the execution of the Laws, and the appointment of officers not otherwise appointed: a single Executive may be responsible, but a numerous one cannot be responsible.

Madison agreed with Wilson in the Definition of Executive power. Ex vi termini. Executive power does not include the Power of War and Peace. Executive Power shd. be limited and defined. If large, we shall have the Evils of Elective Monarchies. Perhaps the best plan will be a single Executive of long duration, with a Council and with Liberty to dissent on his personal Responsibility.

Gerry. I am in favor of a Council to advise the Executive: they will be organs of information respecting Persons qualified for the various offices. Their opinions may be recorded, so as to be liable to be called to account & impeached—in this way, their Responsibility will be certain, and for misconduct their Punishment sure.

Dickinson. A limited yet vigorous Executive is not republican, but peculiar to monarchy—the royal Executive has vigour, not only by power, but by popular Attachment & Report—an Equivalent to popular attachment may be derived from the Veto on the Legislative acts. We cannot have a limited monarchy—our condition does not permit it. Republics are in the beginning and for a time industrious, but they finally destroy themselves because they are badly constituted. I dread the consolidation of the States, & hope for a good national Govt. from the present Division of the States with a feeble Executive.

We are to have a Legislature of two branches, or two Legislatures, as the sovereign of the nation—this will work a change unless you provide that the judiciary shall aid and correct the Executive. The first Branch of the Legislature, the H. of Representatives, must be on another plan. The second Branch or Senate may be on the present scheme of representing the States-the Representatives to be apportioned according to the Quotas of the States paid into the general Treasury. The Executive to be removed from office by the national. Legislature, on the Petition of seven States.

Randolph—by a single Executive, there will be danger of Monarchy or Tyranny. If the Executive consist of three persons, they may act without danger. If of one, he will be dependent on the Legislatures &cannot be impeached till the Expiration of his Office. A single Executive against the Genius of America.

Wilson—There are two important Points to be considered, the extent of the Country & the Manners of the People of the U. S.-the former requires the Vigour of Monarchy, the latter, are against a Kingly Executive, our manners are purely republican.

Montesquieu is favorable to confederated Republics—I also in favor of this Scheme, if we can take for its Basis, Liberty, and are able to ensure a vigourous execution of the Laws. A single executive is not so likely so soon to introduce Monarchy or Despotism, as a complex one. The People of America did not oppose the King, but the Parliament—Our opposition was not against a Unity, but a corrupt Multitude.

Williamson—There is no true difference between an Executive composed of a single person, with a Council, and an Executive composed of three or more persons.

The Question postponed.

After debating the Powers, the Committee proceeded to discuss the Duration of the Executive Power.

Wilson proposed three years, without rotation or exclusion.

Madison proposed good behaviour, or Seven years with exclusion for ever afterward.

Mason—In favor of Seven years, and future ineligibility—by this Provision the executive is made independent of the Legislature, who may be his Electors—if re-elected, he will be complaisant to the Legislature to obtain their favor & his own Re-election.

On the Question for Seven years—Mass. Gerry & Strong, no. Gorham & King aye—divided.3 Cont. N. C., S. C. & G. no. N. Y. Penn. Del. Virginia aye. 5 ayes, 4. nos—1. divided. So the blank filled.

JUNE 4.

Unity of Executive-power resumed.

On Question of a single executive carried thus.

Mass. Cont. N. Y. Penn. Virg. N. C., S. Car. Georg.—Ay. N. J. Del. Mard.—No.

Motion by Gerry seconded by Mr. King, to postpone the article for a Council of Revision, and to vest a qualified Negative in the Executive.

Affirmative all the States except Cont. & Mard.

Wilson second Hamilton—proposed a complete Negative in the Executive. The natural operation of the Legislature will be to swallow up the Executive power: divided power becomes the object of contest; if the powers are equal, each will preserve its own—otherwise the strongest will acquire the whole.

Butler opposed—because it will become a King.

Franklin opposed—Our former Govt. in Penn. abused this power of a full Negative and extorted money from the Legislature, before he would sign their acts—in one instance he refused his Signature to a Bill to march the Militia agt. the Indians, till the Bill exempted from Taxes the Estate of the Proprietors on account of the expense of the Militia.

One man cannot be believed to possess more wisdom than both Branches of the Legislature—the Royal Negative has not been exercised since the Revolution; he easily does by corruption what could be done with some risk by his negative.

Madison—opposed—No man would dare negative a Bill unanimously passed. It is even doubtful whether the King of England wd have Firmness enough to do so.

Mason—opposed—We have voted that the executive power be vested in one person—it is now proposed to give this person a negative in all cases—you have agreed that he shall appoint all officers, not otherwise to be appointed, and those he has not the sole power to appoint, you propose to grant to him the power to negative—with these powers the Executive may soon corrupt the Legislature—the Executive will become a monarchy. We must regard the Genius of our People, which is Republican, & will not receive a King.

Franklin—The Prince of Orange at first had limited Powers, and his office was for Life his son raised a faction &caused himself to be declared hereditary—we may meet the same fate.

Unanimous negative, except Wilson, Hamilton, King.

Madison—The judiciary ought to be introduced in the business of Legislation—they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure—but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true—In all Countries are diversity of Interests, the Rich & the Poor, the Dr. &cr., the followers of different Demagogues, the Diversity of religious Sects—the Effects of these Divisions in ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority—a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge—add the judiciary, and you greatly increase his respectability.

Wilson—Wilson moved and Madison seconds, that the judiciary be added to the Executive in revising the Laws.

Dickinson opposed—you shd. separate the Departments—you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the judges are to interpret the Laws, and therefore shd. have no share in making them—not so with the executive whose causing the Laws to be executed is a ministerial office only. Besides we have experience in the Br. Constitution which confers the Power of a negative on the Executive. the motion was withdrawn.

JUDICIARY POWER.

Wilson proposes that the judiciary be appointed by the National Executive, because he will be responsible.

Rutledge opposes, because the States generally appoint by their Legislatures.

Franklin—The 15 Lords of Sessions in Scotland are appointed by the Barristers or Doctors—these elect the most learned of their own order, because he has the most Business, wh. afterwards is divided among themselves.

Madison—in favor of further deliberation. Perhaps the appointment shd. be by the Senate—

Postponed—N. H., s, NY, Penn & Md. by the Executive power R. Island by the People—Con.N. J.Del.Virg.N. Car. & So. Car elect judges by Legislatre.

Rutledge proposes to have a supreme Natl. Tribunal but no subordinate ones, except those established by the States respectively.

Wilson of a different opinion.

Dickinson—the State & Genl. Tribunals will interfere—we must have a National Tribunal—entire and proceeding from the Genl Govt.

Madison—proposed to vest the Genl. Govt. with power to establish an independent judiciary, to be co-extensive with the nation. Ayes, 5, No, 4, divided 2.

REPRESENTATIVES.

Chs. Pinckney—proposes that the Representatives shd. be chosen by the Legislatures & not by the People—as the old members of Congress are chosen.

Gerry—proposes that the People shd. elect double the requisite number, and out of them the Legislature to choose the authorized number of each State. The People may be imposed upon by corrupt and unworthy men.

Wilson—Representatives shd. be elected by the People, thereby we shall come nearer to the will or sense of the majority—If you give the Election to the State Legislatures, you give it to the Rivals of the General Govt.—the People having parted with sufficient Powers, it remains only to divide these Powers between the Genl. & State Govts.

The People will love & respect the Genl. Govt., if it is founded on their consent & derived from them—it will acquire rank above the State Govts.

Mason—at Present the Reps. in Congress do not represent the People but the States—It is now proposed to form a Gov. for men, not for States—therefore draw the Reps. from the People—the Representation to be faithful shd. shew the Defects of the People; if not, how are they to be corrected? A Representation proceeding from the Legislatures will not afford this correction.

Suppose a majority of the Legislature to be in favor of Paper money, or some other bad measure, would they not elect Members to Congress, holding the same opinions?

Sherman—If the State Govts. remain, they shd. appoint Representatives to Congress—if they are to be swept away, then the People must elect,—the State Govts. must continue—few objects in this case will be before the Genl. Govt.—for war, treaties &commerce—Let the Genl. Govt. be a collateral Govt. to secure the States in particular Exigencies—for war, or war between the States.

I am opposed to a Genl. Govt. & in favor of the independence &confederation of the States—give the Genl. Govt. powers to regulate Commerce, drawing there from a Revenue.

Dickinson—We cannot form a Genl. Gov. unless we draw a Branch from the People, and a Br. from the Legislatures of the States—in theory this is requisite, and to the success of the scheme, it is also essential—the objection to popular Elections arise from the nature of free Govts. and are slight in comparison with the Excellence of such Govts.—the other Branch or Senate must come from the State Legislatures—they will thereby be more respectable, and for Respectability & Duration resemble the Br. H. of Lords. They can come from Legislatures who are & have been opposed to the general Govt.—they shd. be appointed for 3, 5 or 7 years, not subject to a recall and dependent on the Genl. Gov. for support.

Read—We must come to a consolidation—State Govts. must be swept away—we had better speak out—that the People will disapprove is perhaps a mistake—the State Magistrates may disapprove but the People are with us.

Genl. Pinckney—An election in South Carolina by the people is impracticable—the settlements are so sparse, that four or five thousand cannot be assembled to give their votes. I am in favor of an Election by the Legislatures—in So. Carolina the Legislature is against the issue of Paper Money with a tender, but in my Opinion a majority of the People are in favor thereof.

Wilson—I would preserve the State Govts.—there is no danger of their being swallowed up by the Genl. Govt.—the States have overpowered the Confederated Governments—The Amphictionic Council & the Ach

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