Thursday, May 31 | Debates in the Federal Convention of 1787

by James Madison

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This Day in the Four Act Drama

WILLIAM PIERCE, from Georgia, took his seat.

In the Committee of the Whole on Mr. RANDOLPH’S Resolutions, — The third Resolution, “that the National Legislature ought to consist of two branches,” was agreed to without debate, or dissent, except that of Pennsylvania, — given probably from complaisance to Doctor FRANKLIN, who was understood to be partial to a single house of legislation.

The fourth Resolution, first clause, “that the members of the first branch of the National Legislature ought to be elected by the people of the several states,” being taken up:

Mr. SHERMAN opposed the election by the people, insisting that it ought to be by the State Legislatures. The people, he said, immediately, should have as little to do as may be about the government. They want information, and are constantly liable to be misled.

Mr. GERRY. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of government. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamor in Massachusetts for the reduction of salaries, and the attack made on that of the Governor, though secured by the spirit of the Constitution itself. He had, he said, been too republican heretofore: he was still, however, republican; but had been taught by experience the danger of the levelling spirit.

Mr. MASON argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the government. It was, so to speak, to be our House of Commons. It ought to know and sympathize with every part of the community; and ought therefore to be taken, not only from different parts of the whole republic, but also from different districts of the larger members of it; which had in several instances, particularly in Virginia, different interests and views arising from difference of produce, of habits, &c. &c. He admitted that we had been too democratic, but was afraid we should incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity and policy; considering, that, however affluent their circumstances, or elevated their situations, might be, the course of a few years not only might, but certainly would, distribute their posterity throughout the lowest classes of society. Every selfish motive, therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest, than of the highest, order of citizens.

Mr. WILSON contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican government, this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the National Legislature. All interference between the general and local governments should be obviated as much as possible. On examination it would be found that the opposition of States to Federal measures had proceeded much more from the officers of the States than from the people at large.

Mr. MADISON considered the popular election of one branch of the National Legislature as essential to every plan of free government. He observed, that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That, if the first branch of the General Legislature should be elected by the State Legislatures, the second branch elected by the first, the Executive by the second together with the first, and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but thought it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive and Judiciary branches of the government. He thought, too, that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures.

Mr. GERRY did not like the election by the people. The maxims taken from the British constitution were often fallacious when applied to our situation, which was extremely different. Experience, he said, had shown that the State Legislatures, drawn immediately from the people, did not always possess their confidence. He had no objection, however, to an election by the people, if it were so qualified that men of honor and character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number, out of which the State Legislatures should be bound to choose.

Mr. BUTLER thought an election by the people an impracticable mode.

On the question for an election of the first branch of the National Legislature by the people, Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, aye — 6; New Jersey, South Carolina, no — 2; Connecticut, Delaware, divided.

The remaining clauses of the fourth Resolution, relating to the qualifications of members of the National Legislature, being postponed, nem. con., as entering too much into detail for general propositions, —

The Committee proceeded to the fifth Resolution, that the second [or senatorial] branch of the National Legislature ought to be chosen by the first branch, out of persons nominated by the State Legislatures.

Mr. SPAIGHT contended, that the second branch ought to be chosen by the State Legislatures, and moved an amendment to that effect.

Mr. BUTLER apprehended that the taking so many powers out of the hands of the States as was proposed tended to destroy all that balance and security of interests among the States which it was necessary to preserve; and called on Mr. RANDOLPH, the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch.

Mr. RANDOLPH observed, that he had, at the time of offering his propositions, stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numerous assemblies are liable. He observed, that the general object was to provide a cure for the evils under which the United States labored; that in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy; that some check therefore was to be sought for, against this tendency of our governments; and that a good Senate seemed most likely to answer the purpose.

Mr. KING reminded the Committee that the choice of the second branch, as proposed, (by Mr. SPAIGHT) viz., by the State Legislatures, would be impracticable, unless it was to be very numerous, or the idea of proportion among the States was to be disregarded. According to this idea, there must be eighty or a hundred members to entitle Delaware to the choice of one of them.

Mr. SPAIGHT withdrew his motion.

Mr. WILSON opposed both a nomination by the State Legislatures, and an election by the first branch of the National Legislature, because the second branch of the latter ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of choosing the Senate of New York, to wit, of uniting several election districts for one branch, in choosing members for the other branch, as a good model.

Mr. MADISON observed, that such a mode would destroy the influence of the smaller States associated with larger ones in the same district; as the latter would choose from within themselves, although better men might be found in the former. The election of Senators in Virginia, where large and small counties were often formed into one district for the purpose, had illustrated this consequence. Local partiality would often prefer a resident within the county or State, to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own State.

Mr. SHERMAN favored an election of one member by each of the State Legislatures.

Mr. PINCKNEYmoved to strike out the “nomination by the State Legislatures;” on this question —

Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no—9; Delaware, divided.1

On the whole question for electing by the first branch out of nominations by the State Legislatures — Massachusetts, Virginia, South Carolina, aye — 3; Connecticut, New York, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no — 7.

So the clause was disagreed to, and a chasm left in this part of the plan.

The sixth Resolution, stating the cases in which the National Legislature ought to legislate, was next taken into discussion. On the question whether each branch should originate laws, there was an unanimous affirmative, without debate. On the question for transferring all the legislative powers of the existing Congress to this assembly, there was also an unanimous affirmative, without debate.

On the proposition for giving legislative power in all cases to which the State Legislatures were individually incompetent, —  Mr. PINCKNEY and  Mr. RUTLEDGE objected to the vagueness of the term “incompetent,” and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.

Mr. BUTLER repeated his fears that we were running into an extreme, in taking away the powers of the States; and called on Mr. RANDOLPH for the extent of his meaning.

Mr. RANDOLPH disclaimed any intention to give indefinite powers to the National Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions; and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.

Mr. MADISON said, that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the National Legislature; but had also brought doubts concerning its practicability. His wishes remained unaltered; but his doubts had become stronger. What his opinion might ultimately be, he could not yet tell. But he should shrink from nothing which should be found essential to such a form of government as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.

On the question for giving powers, in cases to which the States are not competent — Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye — 9; Connecticut, divided, (SHERMAN, no, ELLSWORTH, aye.)

The other clauses, giving powers necessary to preserve harmony among the States, to negative all State laws contravening, in the opinion of the National Legislature, the Articles of Union, down to the last clause, (the words, “or any treaties subsisting under the authority of the Union,” being added after the words “contravening, &c. the Articles of the Union,” on motion of  Doctor FRANKLIN) were agreed to without debate or dissent.

The last clause of the sixth Resolution, authorizing an exertion of the force of the whole against a delinquent State, came next into consideration.

Mr. MADISON observed, that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it, when applied to people collectively, and not individually. An union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment; and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this resource unnecessary, and moved that the clause be postponed. This motion was agreed to,nem. con.

The Committee then rose, and the House adjourned.

1 This question is omitted in the printed Journal, and the votes applied to the succeeding one, instead of the votes as here stated.

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