Journal of the Federal Convention May 31st 1787

House of Representatives. How to Elect a Senate. Enumerated Powers. Negative Over State Laws. Too Much Too Soon. Enforcement With Armed Forces.

The 3d. 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 Docr. Franklin who was understood to be partial to a single House of Legislation.

Resol: 4. [FN2] 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 Massts. 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 Governmt. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Massts. for the reduction of salaries and the attack made on that of the Govr. 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 levilling 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 Govtt. It was, so to speak, to be our House of Commons-It ought to know & sympathise 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 Virga., 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 sd. 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 & 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 orders 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 Governmts. should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceded 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 though 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 & 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 shewn 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 & 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.

On the question for an election of the first branch of the national Legislature by the people.

Massts. ay. Connect. divd. N. York ay. N. Jersey no. Pena. ay. Delawe. divd. Va. ay. N. C. ay. S. C. no. Georga. ay.

The remaining Clauses of Resolution 4th. [FN3] relating to the qualifications of members of the National Legislature, [FN3] being pospd. nem. con., as entering too much into detail for general propositions:

The Committee proceeded to Resolution 5. [FN4] "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 2d. 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 U. S. laboured; 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 agst. 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 80 or 100 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 chusing the Senate of N. York to wit of uniting several election districts, for one branch, in chusing 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 chuse from within themselves, altho' better men might be found in the former. The election of Senators in Virga. where large & 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. PINKNEY moved to strike out the "nomination by the State Legislatures." On this question.

[FN5]Massts. no. Cont. no. N. Y. no. N. J. no. Pena. no. Del divd. Va. no. N. C. no. S. C. no. Georg no. [FN6]

On the whole question for electing by the first branch out of nominations by the State Legislatures, Mass. ay. Cont. no. N. Y. no. N. Jersey. no. Pena. no. Del. no. Virga. ay. N. C. no. S. C. ay. Ga. no. [FN7]

[FN8] 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 shd. originate laws, there was an unanimous affirmative without debate. On the question for transferring all the Legislative powers of the existing Congs. to this Assembly, there was also a silent affirmative nem. con.

On the proposition for giving "Legislative power in all cases to which the State Legislatures were individually incompetent."

Mr. PINKNEY & 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 un ltered; 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 Govt. 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, Massts. ay. Cont. divd. [Sherman no Elseworth ay] N. Y. ay. N. J. ay. Pa. ay. Del. ay. Va. ay. N. C. ay. S. Carolina ay. Georga. ay. [FN9]

The other clauses [FN10] giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. 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 Dr. FRANKLIN) were agreed to witht. debate or dissent. The last clause of Resolution 6. [FN11] authorizing an exertion of the force of the whole agst. 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. -A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. 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 recourse [FN12] unnecessary, and moved that the clause be postponed. This motion was agreed to nem. con.

FN3 In the transcript the words "Resolution 4th" are changed to "the fourth Resolution" and the phrase "the qualifications of members of the National Legislature" is italicized."

FN4 In the transcript the words "Resolution 5," are changed to "the fifth Resolution" and the words of the resolution are italicized.

FN5 This question [FN6] omitted in the printed Journal, & the votes applied to the succeeding one, instead of the votes as here stated [this note to be in the bottom margin]. [FN6]

FN6 In the transcript the vote reads: "*Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no-9; Delaware divided"; and Madison [VA]'s direction concerning the footnote is omitted. The word "is" is inserted after the word "question."

FN7 In the transcript the vote reads: "Massachusetts, Virginia, South Carolina, aye-3; Connecticut, New York, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no-7."

FN8 In this paragraph the transcript italicizes the following phrases: "the cases in which the national Legislature ought to legislate," "whether each branch shd. originate laws," "for transferring all the Legislative powers of the existing Cong. to this Assembly"; and the phrase "a silent affirmative nem. con." is changed to "an unanimous affirmative, without debate."

FN9 In the transcript the vote reads: "Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye- 9; Connecticut divided (Sherman, no. Ellsworth, aye)."

FN10 The phrase, "giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union" is italicized in the transcript.

FN11 The words "the sixth Resolution" are substituted in the transcript for "resolution 6" and the phrase "authorizing and exertion of the force of the whole ags.t a delinquent State" is italicized.

Benjamin Franklin (PA) was the sole “nay” to the third resolution, that the National Legislature be composed of two branches.

(Page Smith, in his The Constitution, A Documentary and Narrative History, devoted a few pages to revolutionary Pennsylvania. In 1776, with the help of Franklin, conservative, royalist leaning leaders were trounced from power. The subsequent PA Constitution provided for suffrage for all freemen over 21 years of age who had paid taxes during the preceding year. Elections were held annually with a two year term limit. To get around the fickleness of a unicameral legislature, all bills, after an initial hearing, were printed and distributed among the public. The bill would then be voted up/down after the next election. Debtor prisons were eliminated. A Council of Censors, an idea borrowed from the Roman Republic, “would enquire whether the Constitution had been preserved inviolate in every part,” every seven years. This was heady stuff, a radical plan of government.)

Resolution 4, 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.

Roger Sherman (CN) and Elbridge Gerry (MA) opposed popular elections to the first branch. Elbridge Gerry, “The evils we experience flow from an excess of democracy. The people do not want virtue, but are dupes of pretended patriots.”

(Events since the peace treaty had a big influence. In 1783 a majority of CN towns sent delegates to an extralegal convention to protest a half pay provision granted to Continental Army officers by Congress. The convention denounced the gratuity and called for changes to the state government not unlike those demanded by the western, rural areas of MA. Dissidents gained control of the lower CN house and provided some tax relief to farmers. MA later saw revolts that spared CN. Sherman and Gerry had seen enough of democracy to reject its “leveling spirit.”)

George Mason (VA), a Planter, answered Mr. Gerry. He cautioned the convention to base the republic on the mass of the people.

(Mr. Mason, whose family was several generations into the Virginia aristocracy, owned a couple hundred slaves on five thousand acres, had firm faith in the average citizen. He was also an early abolitionist. OTOH, Elbridge Gerry, the talented and wealthy merchant had little respect for the average man. It was said that only Daniel Shays could drive the curmudgeon to Philadelphia.)

James Wilson (PA) also supported direct election by the people in the first branch. (The great pyramid was to be high, so the base must be wide.) He had had it with the states and would keep them out of the national government.

James Madison (VA) (was as displeased with state conduct as anyone) also described a popularly elected first branch as a great foundation.

Elbridge Gerry (MA) also expressed a distrust of the judgment of the people and doubted they will elect men up to the job. (Do we not, 220 years later suffer from excess democracy?)

Pierce Butler (SC) questioned the motives of Randolph regarding the states.

By a vote of 6-2, the first branch would be elected by the people.

Debate on the remaining clauses of the 4th Resolution regarding the first branch, was postponed.

On to Resolution 5. “Resolved that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of ----- years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to public service; and to be ineligible to any office established by a particular State, or under the authority of the United States, except those peculiarly belonging to the functions of the second branch, during the term of service, and for the space of ----- after the expiration thereof.”

Richard Spaight (NC) Spaight moved an amendment to have the State legislatures appoint members of the 2nd branch.

Pierce Butler (SC) (was horrified?) saw the new system as destroying all “balance and security” between the states. He asked Governor Randolph to further explain his concepts.

Governor Randolph purposely did not offers extensive details in his plan. He did not defend his proposal to have state legislatures nominate a slate of second branch candidates for consideration by the first branch. The number of the second branch should be far less than the first. Excess democracy was the root of the problem the delegates should correct. (A soft, gentlemanly blow against the recent behavior of the states)

Rufus King (MA) did the math. For proportional representation in the Senate, assuming DE gets one Senator, would require 80 - 100 members. (Remember, at this point, suffrage by a ratio of population or wealth in both branches of the legislature was the rule)

James Wilson (PA) thought total independence from the states was best, and supported popular election of both legislative houses.

Roger Sherman (CN) proposed a selection method very close to that under the Articles.

Charles Pinckney (SC) moved the second branch be appointed by members of the first branch without any state involvement. His motion was defeated.

On the question for electing by the first branch out of nominations by the State Legislatures, it was defeated 7-3.

Next up was Resolution 6. “Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.”

By unanimous consent, each branch of the Legislature could originate bills, and all Legislative powers in the Articles of Confederation would be transferred to the new Legislature. (While the Articles of Confederation were unworkable, they were a necessary prelude. That the powers contained therein were copied and dropped into the Virginia Plan said much of the wisdom of its authors.)

The next clause of the 6th Resolution, for giving "Legislative power in all cases to which the State Legislatures were individually incompetent,” was up for debate.

Charles Pinckney (SC) & John Rutledge would need an “enumeration of the powers” granted to Congress before deciding.

Pierce Butler (SC) was apparently aghast at the pace of change and elimination of state power in the national government. He again asked Mr. Randolph to explain his intents.

Governor Edmund Randolph denied intent to grant indefinite powers. (His tone turned hard)

James Madison (VA) was not set in his opinion. Ultimately, the safety, liberty and happiness of the nation were paramount.

On the question for giving powers, in cases to which the States are not competent, passed 9-0-1.

The next 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, were agreed to unanimously.

The last clause of Resolution 6, authorizing force against delinquent states was next.

James Madison (VA) thought a better method of enforcement could be devised. He described the provision as, “to provide for its [the union] own destruction.” Further debate on the clause was postponed.

(Under the Articles, no enforcement mechanism existed to compel compliance with Congress. The Randolph Plan asked for the option of force to be used against such states. It ended up in Article I Section 8 of our Constitution.)

(The Convention rolled on with breathtaking speed. The Articles of Confederation were mortally wounded, a two house Congress empowered to negative State Law was shaping up, and the people had large say in how they were to be governed. Small State delegates were not yet ready for resistance, but resist they would.)

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