|Notes on the Debates in the Federal Convention
By James Madison
June 6, 1787
Wednesday June 6, 1787
IN COMMITTEE OF THE WHOLE
Mr. PINKNEY according to previous notice and 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 Massachusetts
the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of
indigence, ignorance and baseness, spare no pains, however dirty to carry their point against men who are superior to the
artifices practiced. He was not disposed to run into extremes. He was as much principled as ever against 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 should make the appointment.
Mr. WILSON. He wished for vigor in the Government, but he wished that vigorous authority to flow immediately from the
legitimate source of all authority. The Government 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; 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 Government than to the State
Governments 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 Governments the elections ought to be by the people. If the State
Governments are to be continued, it is necessary in order to preserve harmony between the National and State Governments
that the elections to the former should be made by the latter. The right of participating in the National Government would be
sufficiently secured to the people by their election of the State Legislatures.
The objects of the Union, he thought were few. 1. Defense against foreign danger. 2 against internal disputes and a resort
to force. 3. Treaties with foreign nations. 4 regulating foreign commerce, and drawing revenue from it. These and perhaps a
few lesser objects alone rendered a Confederation of the States necessary. All other matters civil and criminal would be much
better in the hands of the States. The people are more happy in small than large States. States may indeed be too small as
Rhode Island, and thereby be too subject to faction. Some others were perhaps too large, the powers of Government not
being able to pervade them. He was for giving the General Government power to legislate and execute within a defined
Col. MASON. Under the existing Confederacy, Congress represent the States not the people of the States: their acts operate
on the States, not on the individuals. The case will be changed in the new plan of Government. 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; should think as they think, and feel as they feel; and that for these purposes should
even be residents among them. Much he said had been alleged against democratic elections.
He admitted that much might be said; but it was to be considered that no Government was free from imperfections and evils;
and that improper elections in many instances, were inseparable from Republican Governments. 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 would not send to
the National 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 Government 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 Government. 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 practiced in some of the States. The gentleman [Mr. Sharman] had admitted
that in a very small State, faction and oppression would 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 though less than in the smallest; and were we not thence admonished to enlarge the sphere as far as the nature
of the Government would admit. This was the only defense against the inconveniencies of democracy consistent with the
democratic form of Government. All civilized Societies would be divided into different Sects, Factions, and interests, as they
happened to consist of rich and poor, debtors and 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 and oppression. -These observations are
verified by the Histories of every Country ancient and modern. In Greece and Rome the rich and poor, the creditors and
debtors, as well as the patricians and plebeians alternately oppressed each other with equal unmercifulness. What a source of
oppression was the relation between the parent cities of Rome, Athens and Carthage, and their respective provinces: the
former possessing the power, and the latter being sufficiently distinguished to be separate objects of it?
Why was America so justly apprehensive of Parliamentary injustice? Because Great Britain had a separate interest real or
supposed, and if her authority had been admitted, could have pursued that interest at our expense. We have seen the mere
distinction of color 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
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 Government the Majority, if united have always
an opportunity. The only remedy is to enlarge the sphere, and thereby divide the community into so great a number of
interests and 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 should have such an interest, they may not be
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 and in such a form as will control all the evils which have been experienced.
Mr. DICKENSON considered it as essential that one branch of the Legislature should be drawn immediately from the people;
and as expedient that the other should be chosen by the Legislatures of the States. This combination of the State Government
with the national Government 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 Government but for leaving the States a
considerable agency in the System. The objection against making the former dependent on the latter might be obviated by
giving to the Senate an authority permanent and irrevocable for three, five or seven years. Being thus independent they will
speak and decide with becoming freedom.
Mr. READ. Too much attachment is betrayed to the State Governments. We must look beyond their continuance. A national
Government must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the
National Senate. He was against patching up the old federal System: he hoped the idea would 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 Government 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 General Government. The aversion lies among
interested men who possess their confidence.
Mr. PIERCE was for an election by the people as to the 1st branch and by the States as to the 2d branch; by which means
the Citizens of the States would be represented both individually and collectively.
Gen. PINKNEY wished to have a good National Government and 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 South Carolina was
totally impracticable. He differed from gentlemen who thought that a choice by the people would be a better guard against bad
measures, than by the Legislatures. A majority of the people in South 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, and more ready to thwart
the National Government if excluded from a participation in it. The Idea of abolishing these Legislatures would 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 Governments ought to be abandoned. He saw no incompatibility between the National and State Governments provided
the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all
confederated Systems ancient and 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:
Massachusetts, no. Connecticut, aye. New York, no. New Jersey, aye. Pennsylvania, no. Delaware, no. Maryland, no.
Virginia, no. North Carolina, no. South Carolina, aye. Georgia, no.
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
defense arose from the nature of Republican Government which could not give to an individual citizen that settled
preeminence in the eyes of the rest, that weight of property, that personal interest against 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 preeminent as to produce universal acquiescence.
The Executive Magistrate would be envied and assailed by disappointed competitors: His firmness therefore would need
support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which
would place him out of the reach of foreign corruption: He would stand in need therefore of being controlled as well as
supported. An association of the Judges in his revisionary function would both double the advantage and diminish the danger.
It would also enable the Judiciary Department the better to defend itself against 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 Department ought to be separate and distinct from the other great
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 would be such wherein he had been consulted; that a small part of this proportion would be so
ambiguous as to leave room for his prepossessions; and that but a few cases would probably arise in the life of a Judge under
such ambiguous passages. How much good on the other hand would proceed from the perspicuity, the conciseness, and the
systematic character which the Code of laws would receive from the Judiciary talents. As to the 2d. objection, it either had
no weight, or it applied with equal weight to the Executive and 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 the Judiciary from the Legislature and from each
other. There would 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 would be more impartial than when he could be covered by the
sanction and 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 departments, the Secretary of War, of foreign
affairs and in the council of revision. He had however relinquished the idea from a consideration that these could be called in
by the Executive Magistrate whenever he pleased to consult them. He was opposed to an 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
against Legislative usurpations on it. The purse and the sword ought never to get into the same hands whether Legislative or
Mr. DICKENSON. Secrecy, vigor and dispatch are not the principal properties required 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 add 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, Massachusetts, no. Connecticut, aye.
New York, aye. New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, no. Virginia, aye. North Carolina, no. South
Carolina, no. Georgia no.
Mr. PINKNEY gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution
adopted by the Committee which vests a negative in the National Legislature on the laws of the several States.
The Committee rose and the House adjourned to 11 O‘clock.
|The Illinois Conservative