The Debates in the
Federal Convention of 1787
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
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
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
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 &
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
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
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
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
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
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
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.