by Ron Carter
For a moment, silence held, and then Gerry was on his feet, sharp face dour. “I disagree in the strongest terms. The constitutions of the eastern states have been sanctioned by the people, and I am certain this committee is aware they have the wildest ideas of government in the world! Massachusetts is now for abolishing the senate, and giving all the powers of government to the other branch of legislature! The people can not be trusted with ratification of the constitution.”
Rufus King rose and there was a tone of conciliation toward the remarks of his fellow Massachusetts delegate, Elbridge Gerry. “I observe that the ratification of the Articles of Confederation was effected in the southern states by the legislatures only, and I further observe that after the ratification, they were impliedly given full sanction by the people. But it seems to me, a convention of people appointed to effect such ratification—being a single house—may be more easily conducted than the legislatures, since the legislatures consist of several branches, and many more persons.”
James Wilson shook his head. “Regardless of the process, one thing needs to be observed. We must not approve a system which will cause a plurality of states to suffer if a minority chooses to be selfish or obstinate.”
Pinckney took the floor. “In case the ratification experiment should not unanimously take place, then a combination of nine states should be authorized to unite under the constitution.”
For a moment a hush settled over the room. Nine states? Out of thirteen? Four states disenfranchised and lost? They sensed the need to postpone the proposition, let it mature, and upon motion, the entire question of ratification of the new constitution, should they ever produce one, was set over to a future, unnamed date, when perhaps their heads would be clearer.
Gorham peered up at the clock. “It’s late in the day. This committee is adjourned until tomorrow.”
* * * * *
The sixth day of June dawned cool, with a fair breeze coming down the Delaware. The delegates came to the Statehouse with their coattails flapping and their tricorns clamped firmly onto their heads. Washington called the convention to order and delivered the dais to Gorham, who wasted no time in getting through the required formalities of opening and recognized Pinckney to open debate.
The young man stood. “According to notice previously recorded by myself, I move that the first branch of the national legislature be elected by the state legislatures, and not by the people, for the following reasons.” He paused for effect, then continued. “First, the people are simply not qualified to judge which candidates are fit for the national legislature, and second, the state legislatures will be much less likely to promote the adoption of the new government if they are excluded from all share in it.”
Gouverneur Morris shifted his bulk in his chair and bit down on the terrible urge to stand and in terms raw and cutting declare that this convention was charged with creating a new government that was built on the character, the spirit, the common sense and will of the people! How could they not see that America was a nation, and a nation deserves a national government. They had already established that the house of representatives should be elected by the vote of the people. Why, then, should not the members of the senate—the first house of the new Congress—be elected on the same principle? Why could they not be consistent in following this vital principle?
It was Elbridge Gerry who rose to his feet to be recognized. Washington glanced at him, and those nearest Washington saw the muscles in his jaw tighten for a moment. Franklin took a deep breath, exhaled, and tipped his head forward to close his eyes as though to nod off to a nap.
Gerry launched into a major speech. “Much depends on the mode of election of our legislature. In England, the people will probably lose their liberty from the smallness of the proportion having a right to elect their government.” He paused for a moment, and his voice raised when he continued. “Our danger in this country arises from the opposite extreme. Our people will most likely lose their liberty because of the tremendous number of them allowed to participate in electing their own government.” Again he paused, and thoughtful men were listening as he continued. “In Massachusetts the worst men get into the legislature.” Chairs squeaked as men moved and glanced at each other, and Gerry went on. “Several members of that body have 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. I am not disposed to run into extremes. I am as much principled as ever against aristocracy and monarchy. It is necessary on the one hand that the people should appoint one branch of the government in order to inspire them with the necessary confidence, and we have already provided them that opportunity in electing the house of representatives. However, the election of the senate should be such as to secure more effectually a just preference of merit. It seems clear to me that the people should nominate persons in certain districts, but that the state legislatures should make the appointment from those persons, for the national senate.”
Gouvernor Morris shifted his wooden leg to stand, but James Wilson was already on his feet.
“I dearly wish for vigor in the government, but also earnestly wish that vigorous authority to flow immediately from the legitimate source of all authority—the people. The government ought to possess not only the force, but also the mind and sense of the people at large. The national 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 without it. The people will be rather more attached to the national government than to the state government. 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.”
Roger Sherman rose. “If it is in view to abolish the state governments, the elections for national government ought to be by the people. But if the state governments are to be continued with the national government, then it is necessary for harmony between the two that the national government be elected by the state government, and not directly by the people. The rights of the people to participate in the national government would be secured by their right to elect the state governments, who shall in turn select the national government. The purposes for which we are laboring to form a new national government are few: national defense, disputes between states, treaties, regulation of foreign commerce, and drawing revenue from it. All other matters will be better handled by the state governments. It is true that in states too small, and states too large, improprieties do arise, but they can be dealt with. It seems obvious we should clearly define the limited scope of the proposed new government, and give it only so much power as is necessary.”
George Mason took the floor. “Under the existing confederacy, the congress represents the states, and not the people of the states. The acts of the confederacy congress operate on the states, not the individuals.” He stopped for a few moments to change directions. “The case will be changed with the new plan of government. The people will be represented! They ought therefore to choose the representatives who represent them!”
Madison’s blue eyes were narrowed in deep concentration. We have arrived at the fulcrum. We stand or fall on the issue of who has the power—the states or the people. He cleared his throat and came to his feet, Gorham recognized him, and Madison began.
“I consider an election of at least one branch of the national legislature by the people as a clear principle of free government. This mode, under proper regulations, has the additional advantage of securing better representatives, as well as of avoiding too great an agency of the state governments in the national government. I differ with my colleague from Connecticut in that I believe that in addition to all the obvious functions of a national government, there are less noticeable objects which are vital to peace and tranquility. Among these are the securing of private rights to the citizens, an
d a steady dispensation of justice. Interferences with these were evils which had more perhaps than anything else, produced this convention.”
The room was silent as the delegates concentrated to lift their thoughts to the level of Madison’s. He continued.
“Do we suppose that republican liberty can long exist under the abuses of it practiced in some states? The gentleman from Connecticut has admitted that in a very small state, faction and oppression will prevail. It is true that the abuses have also prevailed in the largest states, but to a markedly lesser degree, with the result that we are led to conclude we should enlarge the sphere as far as the nature of government would admit. The factor of size is the only defense against the inconveniences of democracy, and at the same time consistent with the democratic form of government.”
Again he paused in the silence before continuing.
“Lacking the restraint of size, all civilized societies would be divided into different sects, factions, and interests, as they happen, to consist of rich and poor, debtors and creditors, the landed and the manufacturers, the commercial interests, the inhabitants of one district or another, the followers of one political leader or another, the disciples of this religious sect or that one. 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 oppressions.”
He paused again, and there was a rustle and a squeaking of chairs in the room as men shifted, then settled.
“These observations are verified by the histories of every country, ancient and modern. In Greece and Rome, the rich and the 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 possessed the power and the latter were sufficiently distinguished to be separate objects of such power. 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, Britain could have pursued that interest at our expense.”
Madison stopped, and for several seconds the delegates watched him reach a decision before he continued.
“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.”
There was an intake of breath, then stony silence. Rutledge’s brow furrowed, and his eyes narrowed. Slavery! He’s into slavery!
Madison continued unruffled. “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 lessons 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 have become insecure. In a republican government the majority, if united, have always an opportunity.”
He stopped again to marshal his thoughts, find the fewest right words to drive home the fundamental principle of the entire discourse. He selected his words and his soft voice rang as he delivered them, slowly, emphatically.
“The only remedy is to enlarge the sphere of government, and thereby divide the community into so great a number of interests and parties, that in the first 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 second place, that in case they should have such an interest, they may not be apt to be united in the pursuit of it. It is 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.”
The little man stopped, and for a moment his eyes swept the delegation before he resumed his seat.
Washington had not moved until Madison sat down, and then he leaned forward, forearms on his desk, reflecting for a moment to be certain he understood what Madison had labored so hard to define. Madison proposes that the existence of a true republican government is dependent on creating a large enough mass of citizens that their competing interests will be so numerous that no one faction with one interest will be able to control the majority because there are too many other, diverse interests dividing the entire population. He favors having both the house of representatives and the senate elected by the people, and neither one appointed by the state legislatures. Washington studied the faces of the delegates, probing for some sign of their thoughts.
Gerry, face drawn, mouth pursed, was shuffling paper to convey his contempt of Madison’s discourse. Sherman was drumming his fingers on his desk in boredom. Wilson was whispering to the delegate next to him, gesturing, nodding vigorously. Mason was leaning back, confident, satisfied. Franklin’s eyes were half-closed, as though he were either nodding off into one of his naps, or waking from one.
John Dickinson of Delaware rose to his feet. There was the slightest hint of hesitancy in his voice.
“I consider it essential that one branch of the legislature be drawn immediately from the people, and just as expedient that the other branch be chosen by the state legislatures. This combination of state governments with the national government is as politic as it is 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.”
House of Lords in England? Is Dickinson suggesting we follow the British model of government? Can we not improve on it?
The hall fell into instant silence as Dickinson continued. “I have the utmost admiration for the British Constitution. I wholly support a strong national government, but it is obvious that we must leave the states a considerable position of power in the system.”
George Read, a companion delegate with Dickinson from Delaware rose. “We are showing far too much attachment to the state governments. We must look beyond their continuance. A national government must soon of necessity swallow them up—all of them. They will soon be reduced to the mere office of electing the national senate. I am strongly against patching up the old federal system, and I hope that idea will be very soon dismissed altogether. To patch it up with the new government we are now creating will be like putting new cloth on an old garment. The Confederation was founded on temporary principles, and it cannot last, nor can it 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.”
Read sat down and the debate dragged on. William Pierce spoke for the state legislatures appointing the senate, and Pinckney rose to support Pierce. Wilson stood once again and doggedly championed the common people—let them elect both houses in their new national government. A motion was made and seconded for the vote on the issue of whether the state legislatures should choose the new national senate. One by one the states answered Jackson, who recorded their vote. Aye: three. Nay: eight. At this point the state legislatures would not elect the new national senate.
Weary men grimaced when James Wilson once more took the floor. “I move to reconsider the vote excluding the judiciary from a share in the revision of the laws, and to add to the resolution the words ‘with a convenient number of the judiciary’ following the words ‘national executive.’”
Wilson had just proposed an
idea originated by Madison—the “Council of Revision,” which Madison had borrowed from the New York Constitution of 1777. Madison seconded the motion, arguing that judges would need such powers to defend their decisions.
Then the debate disintegrated into shadings and positions that became an impossible tangle. Gerry left no doubt that the executive would be more impartial in his judgment of the laws if he were not subject to being seduced by the sophistry of the judges. King was convinced that if the unity of the executive was preferred for the sake of responsibility, the policy of it was as applicable to the revisionary as to the executive powers. Pinckney had retreated from his original proposal of a council of revision, and Mason was adamant that the executive ought to remain unattached to any such council—the purse and the sword ought never to get into the same hands, whether legislative or executive. Dickinson had no question but that the executive had to remain independent, and Williamson was for substituting a clause requiring a two-thirds majority for every effective act of the legislature, rather than any such revisionary provisions.
A motion for the vote was seconded, and Jackson recorded the results. Aye: three. Nay: eight.
On the business of joining the judges with the executive on revisionary matters, the answer was a resounding no. The executive and the judicial branches would remain independent of each other, altogether.
Pinckney immediately rose to state that tomorrow he would move for the reconsideration of the clause.
Gorham took the measure of the temper of the delegation and without hesitation adjourned for the day.