Thursday May 31, 1787
James Madison's Notes
William Pierce from Georgia took his seat. 1
In Committee of the whole on Mr. Randolph's propositions. 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. 2
Resol: 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, 3
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. 4 In Massts. it has 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 Governnt. 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 Govt. 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 &. 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 5 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 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 & 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 & 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, Massts. ay. Connect. divd. N. York ay. N. Jersey no. Pena. ay. Delawe. divd. Va. ay. N. C. ay. S.C. no. Georga. ay. [Ayes -- 6; noes -- 2; divided -- 2.]
The remaining Clauses of Resolution 4th. 6 relating to the qualifications of members of the National Legislature being postpd. nem. con. as entering too much into detail for general propositions;
The Committee proceeded to Resolution 5, "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." 6
Mr. Spaight contended 7 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. Randf. 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 8 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.
9 Massts. no. Cont. no. N. Y. no. N. J. no. Pens. no. Del. divd. Va. no. N. C. no. S.C. no Georg no. [Ayes -- 0; noes -- 9; divided -- 1.]
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. [Ayes--3; noes--7.]
So the clause was disagreed to & 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 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. 10
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 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. (Sharman no Elseworth ay) N. Y. ay. N. J. ay. Pa. ay. Del. ay. Va. ay. N. C. ay, S. Carolina ay. Georga. ay. [Ayes -- 9; noes -- 0; divided -- 1.]
The other clauses 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, 11 were agreed to with. debate or dissent.
The last clause of Resolution 6. authorizing an exertion of the force of the whole agist. 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 agist. 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 unnecessary, and moved that the clause be postponed. 12 This motion was agreed to nem. con.
The Committee then rose & the House Adjourned
[May] 31. 13 . -- Mr Pierce attended.
The 3. res. dividing the Nat. Leg. into 2 branches agreed to without debate.
The 1st clause of 4th res. referring the election of the first branch to the people debated and carried. 6 ays. 2 noes -- 2 divided. The other clauses postponed. The 5. Res. for electing the 2d branch by the first from nominations of State Legislatures, & after debate proposed amendment to leave out the nomination, negatived.
1: Taken from Journal.
2: Revised to conform with what is probably a mistake in Journal, see above, Journal ascribes to this question Detail of Ayes and Noes, Vote 4, which is probably a mistake. (See May 29, note 2) Madison's original record made the vote unanimous, which is apparently confirmed by Yates and McHenry.
3: Revised from Journal.
4: Originally "demagogues"; "pretended patriots" may be a correction made at the time or later.
5: Crossed out "competition".
6: Revised according to Journal.
7: According to Pierce, all of the discussion following would seem to have taken place before the determination of the question of the election of the first branch.
8: Crossed out "be sure to".
9: this question omitted in the printed Journal; & the votes applied to the succeeding one, instead of the votes as here stated. McHenry confirms Madison on this point.
10: Pierce adds quite a little to this discussion.
11: Taken from Journal.
12: Madison struck out after postponed "till the contrary should be found on trial to be the case".
13: Memoranda by Madison, see May 14 note 10.