WEDNESDAY JUNE 6th IN COMMITTEE OF THE WHOLE
Mr.
PINKNEY according to previous notice & 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.
RUTLIDGE 2ded. 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 Massts. the
worst men get into the Legislature. Several members of that Body had lately been
convicted of infamous crimes. Men of indigence, ignorance & baseness, spare no
pains, however dirty to carry their point agst. men who are superior to the
artifices practised. He was not disposed to run into extremes. He was as much
principled as ever agst. aristocracy and monarchy. It was necessary on the one
hand that the people should appoint one branch of the Govt. 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 shd. make the appointment.
Mr.
WILSON. He wished for vigor in the Govt., but he wished that vigorous authority
to flow immediately from the legitimate source of all authority. The Govt. ought
to possess not only 1st. the force, but 2dly. 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; 1 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 Govt. than to the State Govts. 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 Govts. the elections ought to
be by the people. If the State Govts. are to be continued, it is necessary in
order to preserve harmony between the National & State Govts. that the elections
to the former shd. be made by the latter. The right of participating in the
National Govt. would be sufficiently secured to the people by their election of
the State Legislatures. The objects of the Union, he thought were few. 1.
2 defence agst. foreign danger. 2
2 agst. internal disputes & a resort to
force. 3. 2 Treaties with foreign nations. 4
2 regulating foreign commerce, & drawing
revenue from it. These & perhaps a few lesser objects alone rendered a
Confederation of the States necessary. All other matters civil & criminal would
be much better in the hands of the States. The people are more happy in small
than 3 large States. States may indeed be too
small as Rhode Island, & thereby be too subject to faction. Some others were
perhaps too large, the powers of Govt. not being able to pervade them. He was
for giving the General Govt. power to legislate and execute within a defined
province.
Col. MASON. Under
the existing Confederacy, Congs. represent the States
4 not the people of the States: their acts operate on
the States, not on the individuals. 5
The case will be changed in the new plan of Govt. The people will be
represented; they ought therefore to choose the Representatives. The requisites
in actual representation are that the Reps. should sympathize with their
constituents; shd. think as they think, & feel as they feel; and that for these
purposes shd. even be residents among them. Much he sd. had been alledged agst.
democratic elections. He admitted that much might be said; but it was to be
considered that no Govt. was free from imperfections & evils; and that improper
elections in many instances, were inseparable from Republican Govts. 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 wd. not send
to the Natl. 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 Govt. 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. Sharman] in thinking the objects mentioned to be all the principal ones
that required a National Govt. 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. Sharman] had admitted that in a very small State, faction & oppression wd.
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 tho'
less than in the smallest; and were we not thence admonished to enlarge the
sphere as far as the nature of the Govt. would admit. This was the only defence
agst. the inconveniencies of democracy consistent with the democratic form of
Govt. All civilized Societies would be divided into different Sects, Factions, &
interests, as they happened to consist of rich & poor, debtors & 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 & oppression. —
These observations are verified by the Histories of every Country antient &
modern. In Greece & Rome the rich & poor, the creditors & debtors, as well as
the patricians & plebians alternately oppressed each other with equal
unmercifulness. What a source of oppression was the relation between the parent
cities of Rome, Athens & Carthage, & their respective provinces: the former
possessing the power, & the latter being sufficiently distinguished to be
separate objects of it? Why was America so justly apprehensive of Parliamentary
injustice? Because G. Britain had a separate interest real or supposed, & if her
authority had been admitted, could have pursued that interest at our expence. We
have seen the mere distinction of colour 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
Govt. the Majority if united have always an opportunity. The only remedy is to
enlarge the sphere, & thereby divide the community into so great a number of
interests & parties, that in the 1st. 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 2d. place, that in case they shd. have such an interest,
they may not be 6 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 & in such a form as will controul all
the evils wch. have been experienced.
Mr.
DICKENSON considered it as 7 essential that
one branch of the Legislature shd. be drawn immediately from the people; and as
expedient that the other shd. be chosen by the Legislatures of the States. This
combination of the State Govts. with the national Govt. 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 near 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 Govt. but for leaving the States a considerable agency in
the System. The objection agst. making the former dependent on the latter might
be obviated by giving to the Senate an authority permanent & irrevocable for
three, five or seven years. Being thus independent they will speak
8 & decide with becoming freedom.
Mr.
READ. Too much attachment is betrayed to the State Governts. We must look beyond
their continuance. A national Govt. must soon of necessity swallow all of them
9 up. They will soon be reduced to the mere
office of electing the National Senate. He was agst. patching up the old federal
System: he hoped the idea wd. 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 Govt. 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 Genl. Govt. The
aversion lies among interested men who possess their confidence.
Mr.
PIERCE was for an election by the people as to the 1st. branch & by the States
as to the 2d. branch; by which means the Citizens of the States wd. be
represented both individually & collectively.
General PINKNEY
wished to have a good National Govt. & 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 S. Carolina was totally
impracticable. He differed from gentlemen who thought that a choice by the
people wd. be a better guard agst. bad measures, than by the Legislatures. A
majority of the people in S. 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, & more
ready to thwart the National Govt., if excluded from a participation in it. The
Idea of abolishing these Legislatures wd. 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 Govts. ought to be abandoned. He
saw no incompatibility between the National & State Govts. provided the latter
were restrained to certain local purposes; nor any probability of their being
devoured by the former. In all confederated Systems antient & modern the reverse
had happened; the Generality being destroyed gradually by the usurpations of the
parts composing it.
On the question
for electing the 1st. branch by the State Legislatures as moved by Mr. Pinkney:
it was negatived:
Mass. no. Ct. ay.
N. Y. no. N. J. ay. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo.
no. 10
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 2ded. the motion. He observed that the great difficulty in rendering the
Executive competent to its own defence arose from the nature of Republican Govt.
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 agst.
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 & assailed by
disappointed competitors: His firmness therefore wd. need support. He would not
possess those great emoluments from his station, nor that permanent stake in the
public interest which wd. place him out of the reach of foreign corruption: He
would stand in need therefore of being controuled as well as supported. An
association of the Judges in his revisionary function wd. both double the
advantage and diminish the danger. It wd. also enable the Judiciary Department
the better to defend itself agst. Legislative encroachments. Two objections had
been made 1st. 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. 2dly.
that the Judiciary Departmt. ought to be separate & distinct from the other
great Departments. The 1st. objection had some weight; but it was much
diminished by reflecting that a small proportion of the laws coming in question
before a Judge wd. be such wherein he had been consulted; that a small part of
this proportion wd. be so ambiguous as to leave room for his prepossessions; and
that but a few cases wd. probably arise in the life of a Judge under such
ambiguous passages. How much good on the other hand wd. proceed from the
perspicuity, the conciseness, and the systematic character wch. the Code of laws
wd. receive from the Judiciary talents. As to the 2d. objection, it either had
no weight, or it applied with equal weight to the Executive & to the Judiciary
revision of the laws. The maxim on which the objection was founded required a
separation of the Executive as well as of 11
the Judiciary from the Legislature & from each other. There wd. 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 wd. be more impartial than
when he cd. be covered by the sanction & 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.
PINKNEY had been at first in favor of joining the heads of the principal
departmts. the Secretary of War, of foreign affairs & — in the council of
revision. He had however relinquished the idea from a consideration that these
could be called in 12 by the Executive
Magistrate whenever he pleased to consult them. He was opposed to an
13 introduction of the Judges into the
business.
Col. MASON was for
giving all possible weight to the revisionary institution. The Executive power
ought to be well secured agst. Legislative usurpations on it. The purse & the
sword ought never to get into the same hands whether Legislative or Executive.
Mr.
DICKENSON. Secrecy, vigor & despatch are not the principal properties reqd. 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 2/3 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, Mass. no.
Cont. ay. N. Y. ay. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. no. S. C.
No. Geo. no. 14
Mr.
PINKNEY gave notice that tomorrow he should move for the reconsideration of that
clause in the sixth Resolution adopted by the Comme. which vests a negative in
the National Legislature on the laws of the several States.
The Come. rose &
the House adjd. to 11 OC. 15
1.
The phrase "with all the necessary powers" is italicized in the transcript.
2.
The figures "1," "2," "3" and "4" are changed to "first," "secondly," etc. in
the transcript.
3.
The word "in" is here inserted in the transcript.
4.
The word "and" is here inserted in the transcript.
5.
The transcript italicizes the word "individuals."
6.
The word "so" is here inserted in the transcript.
7.
The word "as" is omitted in the transcript.
8.
The word "check" is substituted in the transcript for "speak."
9.
The words "them all" are substituted in the transcript for "all of them."
10.
In the transcript the vote reads "Connecticut, New Jersey, South Carolina, aye —
3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, Georgia, no — 8.
11.
The word "of" is omitted in the transcript.
12.
The word "on" is substituted in the transcript for "in."
13.
The word "the" is substituted in the transcript for "an."
14.
In the transcript the vote reads: "Connecticut, New York, Virginia, aye — 3;
Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina,
South Carolina, Georgia, no — 8."
15.
The expression "to 11 OC" is omitted in the transcript.
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