Convention of Massachusetts, January 16, 1788
Wednesday, January 16. The 2d part of the 2d section of the 3d article was read at the table; a desultory conversation ensued on the mode of conducting the discussion; it was again agreed, that, in the debate on any paragraph, gentlemen might discuss any other part they might suppose had relation to that under consideration.
Mr. PIERCE, (from Partridgefield,) after reading the 4th section, wished to know the opinion of gentlemen on it, as Congress appeared thereby to have a power to regulate the time, place, and manner of holding elections. In respect to the manner, said Mr. P., suppose the legislature of this state should prescribe that the choice of the federal representatives should be in the same manner as that of governor,a majority of all the votes in the state being necessary to make it such,and Congress should deem it an improper manner, and should order that it be as practised in several of the Southern States, where the highest number of votes make a choice;have they not power by this section to do so? Again, as to the place, continues Mr. P., may not Congress direct that the election for Massachusetts shall be held in Boston? and if so, it is possible that, previous to the election, a number of the electors may meet, agree upon the eight delegates, and propose the same to a few towns in the vicinity, who, agreeing in sentiment, may meet on the day of election, and carry their list by a major vote. He did not, he said, say that this would be the case; but he wished to know if it was not a possible one. As the federal representatives, who are to form the democratical part of the general government, are to be a check on the representatives of the sovereignty, the senate, he thought the utmost caution ought to be used to have their elections as free as possible. He observed that, as men have ever been fond of power, we must suppose they ever will continue so; and concluded by observing, that our caution ought in the present case to be greater, as, by the proposed Constitution, no qualification of property was required in a representative; and it might be in the power of some people thereby to choose a bankrupt for a representative, in order to give such representatives employment, or that he might make laws favorable to such a description of the people.
Gen. PORTER (from Hadley) endeavored to obviate the objections of Mr. Pierce, by showing the almost impossibility of Congress making a law whereby eight men could be elected, as Mr. Pierce had supposed; and he thought it equally impossible for the people to choose a person to take care of their property, who had none himself.
Mr. BISHOP rose, and observed that, by the 4th section, Congress would be enabled to control the elections of representatives. It has been said, says he, that this power was given in order that refractory states may be made to do their duty. But if so, sir, why was it not so mentioned? If that was the intention, he asked why the clause did not run thus: “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but,” if any state shall refuse or neglect so to do, “Congress may,” &c. This, he said, would admit of no prevarication. I am, says Mr. B., for giving Congress as much power to do good as possible. It has been said, Mr. President, that the conduct of Rhode Island, in recalling its delegates from Congress, has demonstrated the necessity of such a power being lodged in Congress. I have been informed by people belonging to Rhode Island, sir, that that state never has recalled her delegates from Congress. I do not believe it has. And I call upon the gentleman who mentioned it to authenticate the fact.
The Hon. Mr. KING rose, and assured the Convention that the state of Rhode Island did, by a solemn resolution, some time since, recall its delegates from Congress.
The Hon. Mr. GORHAM confirmed what Mr. K. had said, and added, that, during the session of the federal Convention, when seven states only were represented in Congress, application was made by two companies for the purchase of lands, the sale of which would have sunk seven or eight millions of dollars of the Continental debt, and the most pressing letters were sent on to Rhode Island to send on its delegates; but that state refused: the consequence was, the contract could not then be made.
Mr. BISHOP confessed himself convinced of the fact. He proceeded to observe, that, if the states shall refuse to do their duty, then let the power be given to Congress to oblige them to do it. But if they do their duty, Congress ought not to have the power to control elections. In an uncontrolled representation, says Mr. B., lies the security of freedom; and he thought by these clauses, that that freedom was sported with. In fact, says he, the moment we give Congress this power, the liberties of the yeomanry of this country are at an end. But he trusted they would never give it; and he felt a consolation from the reflection.
The 4th section, which provides that the state legislatures shall prescribe the time, place, and manner of holding elections, and that Congress may at any time make or alter them, except in those of senators, [though not in regular order,] under deliberation.
The Hon. Mr. STRONG followed Mr. Bishop, and pointed out the necessity there is for the 4th section. The power, says he, to regulate the elections of our federal representatives must be lodged somewhere. I know of but two bodies wherein it can be lodgedthe legislatures of the several states, and the general Congress. If the legislative bodies of the states, who must be supposed to know at what time, and in what place and manner, the elections can best be held, should so appoint them, it cannot be supposed that Congress, by the power granted by this section, will alter them; but if the legislature of a state should refuse to make such regulations, the consequence will be, that the representatives will not be chosen, and the general government will be dissolved. In such case, can gentlemen say that a power to remedy the evil is not necessary to be lodged somewhere? And where can it be lodged but in Congress? I will consider its advantage in another respect. We know, sir, that a negligence in the appointment of rulers is the characteristic of all nations. In this state, and since the establishment of our present constitution, the first officers of government have been elected by less than one tenth part of the electors of the state. We also know that our town meetings, for the choice of officers, are generally attended by an inconsiderable part of the qualified voters. People attend so much to their private interest, that they are apt to neglect this right. Nations have lost their liberties by neglecting their privileges; consequently Congress ought to have an interposing power to awaken the people when thus negligent. Even supposing, sir, the provisional Clause suggested by the worthy gentleman from Norton should be added, would not Congress then be the judges whether the elections in the several states were constitutional and proper? If so, it will then stand on the same ground it now does. It appears evident that there must be a general power to regulate general elections. Gentlemen have said, the proposed Constitution was in some places ambiguous. I wish they would point out the particular instances of ambiguity; for my part, I think the whole of it is expressed in the plain, common language of mankind. If any parts are not so explicit as they could be, it cannot be attributed to any design; for I believe a great majority of the men who formed it were sincere and honest men.
Mr. BISHOP said the great difficulty with him was, that the power given by the 4th section was unlimited; and he did not yet see that any advantage would arise from its being so.
Mr. CABOT, (of Beverly,) not having spoken upon the question of biennial elections of representatives, begged leave to revert to that subject, so far as to add to what had been said by others, that we should consider the particular business which that body will be frequently called upon to transact, especially in the way of revenue. We should consider that, on a question of supplies of money to support a war, or procure a treaty, it will be impossible for those representatives to judge of the expediency or inexpediency of such supplies, until they shall have had time to become acquainted with the general system of federal politics, in its connection or relation to foreign powers; because upon the situation of those must depend the propriety or impropriety of granting supplies. If to this be added a due attention to the easiest way of raising such supplies, it must appear that biennial elections are as frequent as is consistent with using the power of the representatives for the benefit of their constituents.
Mr. C. then turned to the 4th section, now under debate, and said, It gives me pain to see the anxiety of different gentlemen concerning this paragraph Under consideration, as it evinces a conviction in their minds of what I believe to be truethat a free and equal representation is the best, if not the only foundation upon which a free government can be built; and, consequently, that the greatest care should be taken in laying it. I am, sir, one of the people; such I shall continue; and, with their feelings, I hold “that the right of electing persons to represent the people in the federal government, is an important and sacred right.” The opinions that have been offered upon the manner in which the exercise of this right is provided for by the 4th section, satisfies me that we are all solicitous for the same end, and that we only differ as to the means of attaining it; and for my own part, I confess that I prize the 4th section as highly as any in the Constitution; because I consider the democratic branch of the national government, the branch chosen immediately for the people, as intended to be a check on the federal branch, which latter is not an immediate representation of the people of America, and is not chosen by them, but is a representation of the sovereignty of the individual states, and its members delegated by the several state legislatures; and if the state legislatures are suffered to regulate conclusively the elections of the democratic branch, they may, by such an interference, first weaken, and at last destroy, that check; they may at first diminish, and finally annihilate, that control of the general government, which the people ought always to have through their immediate representatives. As one of the people, therefore, I repeat, that, in my mind, the 4th section is to be as highly prized as any in the Constitution.
Mr. PARSONS contended for vesting in Congress the powers contained in the 4th section, not only as those powers were necessary for preserving the union, but also for securing to the people their equal rights of election. He considered the subject very fully; but we are able to give our readers very imperfectly the heads of his speech. In the Congress, not only the sovereignty of the states is represented in the Senate, but, to balance their power, and to give the people a suitable and efficient check upon them, the federal representatives are introduced into Congress. The legislatures of the several states are the constituents of the Senate, and the people are the constituents of the Representatives. These two branches, therefore, have different constituents, and as they are designed as mutual checks upon each other, and to balance the legislative powers, there will be frequent struggles and contentions between them. The Senate will wish to control, depress, and render inefficient the Representatives; the same disposition in the Representatives towards the Senate, will produce the like exertions on their part. The Senate will call upon their constituents, the legislatures, for aid; the Representatives will look up to the people for support. If, therefore, the power of making and altering the regulations defined in this section, is vested absolutely in the legislature, the Representatives will very soon be reduced to an undue dependence upon the Senate, because the power of influencing and controlling the election of the representatives of the people, will be exerted without control by the constituents of the senators. He further observed, that there was much less danger in trusting these powers in Congress, than in the state legislatures. For if the federal representatives wished to introduce such regulations as would secure to them their places, and a continuance in office, the federal Senate would never consent, because it would increase the influence and check of the Representatives; and, on the other hand, if the Senate were aiming at regulations to increase their own influence by depressing the Representatives, the consent of the latter would never be obtained; and no other regulations would ever obtain the consent of both branches of the legislature, but such as did not affect their neutral rights and the balance of government; and those regulations would be for the benefit of the people. But a state legislature, under the influence of their senators, who would have their fullest confidence, or under the influence of ambitious or popular characters, or in times of popular commotion, and when faction and party spirit run high, would introduce such regulations as would render the rights of the people insecure and of little value. They might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election. Perhaps it then will be objected, that from the supposed opposition of interests in the federal legislature, they may never agree upon any regulations; but regulations necessary for the interests of the people can never be opposed to the interests of either of the branches of the federal legislature; because that the interests of the people require that the mutual powers of that legislature should be preserved unimpaired, in order to balance the government. Indeed, if the Congress could never agree on any regulations, then certainly no objection to the 4th section can remain; for the regulations introduced by the state legislatures will be the governing rule of elections, until Congress can agree upon alterations.
Mr. WIDGERY insisted that we had a right to be jealous of our rulers, who ought never to have a power which they could abuse. The 4th section ought to have gone further; it ought to have had the provision in it mentioned by Mr. Bishop; there would then be a mutual check. And he still wished it to be further explained. The worthy gentleman contested the similitude made by the honorable gentleman from Newburyport, between the power to be given to Congress by the 4th section, to compel the states to send representatives, and the power given to the legislatures by our own constitution, to oblige towns to send representatives to the General Court, by observing that the case was materially different; as, in the latter, if any town refuses to send representatives, a power of fining such towns only is given. It is in vain, said Mr. Widgery, to say that rulers are not subject to passions and prejudices. In the late General Court, of which I was a member, I would willingly have deprived the three western counties from sending delegates to this house, as I then thought it necessary. But, sir, what would have been the consequence? A large part of the state would have been deprived of their dearest privileges. I mention this, sir, to show the force of passion and prejudice.
The Hon. Mr. WHITE said, we ought to be jealous of rulers. All the godly men we read of have failed; nay, he would not trust a “flock of Moseses.” If we give up this section, says he, there is nothing left. Suppose the Congress should say that none should be electors but those worth 50 or a £100 sterling; cannot they do it? Yes, said he, they can; and if any lawyer (alluding to Mr. Parsons) can beat me out of it, I will give him ten guineas.
Col. JONES (of Bristol) thought, by this power to regulate elections, Congress might keep themselves in to all duration.
The Rev. Mr. PERLEY wished Mr. Gerry might be asked some questions on this section. [But Mr. Gerry was not in the house.]
Mr. J. C. JONES said, it was not right to argue the possibility of the abuse of any measure against its adoption. The power granted to Congress by the 4th section, says he, is a necessary power; it will provide against negligence and dangerous designs. The senators and representatives of this state, Mr. President, are now chosen by a small number of electors; and it is likely we shall grow equally negligent of our federal elections; or, sir, a state may refuse to send to Congress its representatives, as Rhode Island has done. Thus we see its necessity.
To say that the power may be abused, is saying what wilt apply to all power. The federal representatives will represent the people; they will be the people; and it is not probable they will abuse themselves. Mr. J. concluded with repeating, that the arguments against this power could be urged against any power whatever.
Dr. JARVIS. Many gentlemen have inferred from the right of regulating elections, by the 4th section, being invested in the federal head, that the powers of wresting this essential privilege from the people would be equally delegated. But it appeared to him, he said, that there is a very material distinction in the two cases; for, however possible it may be that this controlling authority may be abused, it by no means followed that Congress, in any situation, could strip the people of their right to a direct representation. If he could believe in this, he should readily join in sentiment with gentlemen on the other side of the house, that this section alone would be a sufficient objection to the constitution itself. The right of election, founded on the principle of equality, was, he said, the basis on which the whole superstructure was erected; this right was inherent in the people; it was unalienable in its nature, and it could not be destroyed without presuming a power to subvert the Constitution, of which this was the principal; and by recurring to the 2d section, it would appear that “representatives and direct taxes shall be apportioned among the several states according to their respective numbers;” it equally appeared that 30,000 inhabitants were entitled to send a representative, and that wherever this number was found, they would have a right to be represented in the federal legislature. If it was argued that Congress might abuse their power, and, by varying the places of election, distress the people, it could only be observed, that such a wanton abuse could not be supposed; but, if it could go to the annihilation of the right, he contended the people would not submit. He considered the Constitution as an elective democracy, in which the sovereignty still rested in the people, and he by no means could believe that this article was so alarming in its nature, or dangerous in its tendency; as many gentlemen had supposed.
Mr. HOLMES, in reply to Dr. Jarvis, said, the worthy gentleman’s superstructure must fall to the ground; for the Constitution does not provide that every 30,000 shall send a representative, but that it shall not exceed one for every 30,000.