Article 1, Section 1
[Volume 2, Page 25]
Records of the Federal Convention
[1:21; Madison, 29 May]
6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered 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.
[1:47; Journal, 31 May]
"That the national legislature ought to be empowered"
"to enjoy the legislative rights vested in Congress by the confederation; and moreover
To legislate in all cases, to which the separate States are incompetent: [Ayes--9; noes--0; divided--1.] 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 [Volume 2, Page 26] articles of union: (the following words were added to this clause on motion of Mr Franklin, "or any Treaties subsisting under the authority of the union
Questions being taken separately on the foregoing clauses of the sixth resolution they were agreed to.
[1:53; Madison, 31 May]
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. Randolp 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) were agreed to witht. debate or dissent.
[1:225, 229; Journal, 13 June]
Resolved that the national Legislature ought to be empowered.
to enjoy the legislative rights vested in Congress by the confederation; and 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; or any treaties subsisting under the authority of the Union
. . . . .
6. Resolved. that the national Legislature ought to be empowered
to enjoy the legislative rights vested in Congress by the confederation--and 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, or any treaties subsisting under the authority of the union.
[1:243; Madison, 15 June]
2. Resd. that in addition to the powers vested in the U. States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandizes of foreign growth or manufacture, imported into any part of the U. States, by Stamps on paper, vellum or parchment, and by a postage on all letters or packages passing through the general post-Office, to be applied to such federal purposes as they shall deem proper & expedient; to make rules & regulations for the collection thereof; and the same from time to time, to alter & amend in such manner as they shall think proper: to pass Acts for the regulation of trade & commerce as well with foreign nations as with each other: provided that all punishments, fines, forfeitures & penalties to be incurred for contravening such acts rules and regulations shall be adjudged by the Common law Judiciarys of the State in which any offence contrary to the true intent & meaning of such Acts rules & regulations shall have been committed or perpetrated, with liberty of commencing in the first instance all suits & prosecutions for that purpose in the superior Common law Judiciary in such State, subject nevertheless, for the correction of all errors, both in law & fact in rendering judgment, to an appeal to the Judiciary of the U. States
[1:291; Madison, 18 June]
I "The Supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, the other the Senate who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned.
[1:336; Madison, 20 June]
The 2d. Resoln. "that the national Legislature ought to consist of two branches". taken up. the word "national" struck out as of course.
Mr. Lansing, observed that the true queston here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy; and moved instead of the 2d Resolution "that the powers of Legislation be vested in the U. States in Congress". . He had already assigned two reasons agst. such an innovation as was [Volume 2, Page 27] proposed. 1. the want of competent powers in the Convention--2. the state of the public mind. It had been observed by (Mr. Madison) in discussing the first point, that in two States the Delegates to Congs. were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the Delegates however chosen, did not represent the people merely as so many individuals; but as forming a sovereign State. (Mr. Randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. But in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. (Mr Wilson) contended that as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. He admitted that there was no certain criterion of the public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the States to the scheme of an Impost. It could not be expected that those possessing Sovereignty could ever voluntarily part with it. It was not to be expected from any one State, much less from thirteen. He proceeded to make some observations on the plan itself and the argumts. urged in support of it. The point of Representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness: but from the actual fewness of the inhabitants, some of them not having more than one or two. a great inequality existed in the Counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the State Prejudices: will not any other body whether chosen by the Legislatures or people of the States, also represent their prejudices? It had been asserted by his Colleague (Col. Hamilton) that there was no coincidence of interests among the large States that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the States, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. It is proposed that the genl. Legislature shall have a negative on the laws of the States. Is it conceivable that there will be leisure for such a task? there will on the most moderate calculation, be as many Acts sent up from the States as there are days in the year. Will the members of the general Legislature be competent Judges? Will a gentleman from Georgia be a Judge of the expediency of a law which is to operate in N. Hamshire. Such a Negative would be more injurious than that of Great Britain heretofore was. It is said that the National Govt. must have the influence arising from the grant of offices and honors. In order to render such a Government effectual he believed such an influence to be necessary. But if the States will not agree to it, it is in vain, worse than in vain to make the proposition. If this influence is to be attained, the States must be entirely abolished. Will any one say this would ever be agreed to? He doubted whether any Genl Government equally beneficial to all can be attained. That now under consideration he is sure, must be utterly unattainable. He had another objection. The system was too novel & complex. No man could foresee what its operation will be either with respect to the Genl. Govt. or the State Govts. One or other it has been surmised must absorb the whole.
Col. Mason. did not expect this point would have been reagitated. The essential differences between the two plans, had been clearly stated. The principal objections agst. that of Mr. R. were the want of power & the want of practicability. There can be no weight in the first as the fiat is not to be here, but in the people. He thought with his colleague Mr. R. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual Treaty with G. B. in forming which the Commsrs of the U.S. had boldly disregarded the improvident shackles of Congs. had given to their Country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The impracticability of gaining the public concurrence he thought was still more groundless. (Mr. Lansing) had cited the attempts of Congress to gain an enlargment of their powers, and had inferred from the miscarrige of these attempts, the hopelessness of the plan which he (Mr. L) opposed. He thought a very different inference ought to have been drawn; viz. that the plan which (Mr. L.) espoused, and which proposed to augument the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Congs. as a body, much less on any particular members of it. He meant however to speak his sentiments without reserve on this subject; it was a privilege of Age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments; and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? They never will. They never ought. Will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? Will they give unbounded confidence to a secret Journal--to the intrigues--to the factions which in the nature of things appertain to such an Assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years, 78, 79, & 80--It will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a National Legislature. The proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate Representatives to another sett. Much has been said of the unsettled state of the mind of the people. he believed the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others. In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have [Volume 2, Page 28] been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishmt. of two branches in the Legislatures are the State of Pa. & Congs. and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that Body further powers--It was acknowledged by (Mr. Patterson) that his plan could not be enforced without military coertion. Does he consider the force of this concession. The most jarring elements of nature; fire & water themselves are not more incompatible that such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case in which the military force of the State can be properly exerted agst. its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death, was a severity not yet adopted by depotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat. that notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Govts. or render them absolutely insignificant. They were as necessary as the Genl. Govt. and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, tho' comprising so many distinguished characters, could not be expected to make a faultless Govt. And he would prefer trusting to posterity the amendment of its defects, rather than push the experiment too far.
Mr. Luther Martin agreed with (Col Mason) as to the importance of the State Govts. he would support them at the expense of the Genl. Govt. which was instituted for the purpose of that support. He saw no necessity for two branches, and if it existed Congress might be organized into two. He considered Congs as representing the people, being chosen by the Legislatures who were chosen by the people. At any rate, Congress represented the Legislatures; and it was the Legislatures not the people who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the States must always have been ready, to place further confidence in Congs. The causes of repugnance must therefore be looked for elsewhere.--At the separation from the British Empire, the people of America preferred the Establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up--The federal Govt. they formed, to defend the whole agst. foreign nations, in case of war, and to defend the lesser States agst. the ambition of the larger: they are afraid of granting powers unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support; and expose the lesser to being swallowed up by the larger. He conceived also that the people of the States having already vested their powers in their respective Legislatures, could not resume them without a dissolution of their Governments. He was agst. Conventions in the States: was not agst. assisting States agst. rebellious subjects; thought the federal plan of Mr. Patterson did not require coercion more than the national one, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national Judiciary extended into the States would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness.
Mr. Sherman 2ded & supported Mr. Lansing's motion. He admitted two branches to be necessary in the State Legislatures, but saw no necessity for them in a Confederacy of States. The Examples were all, of a single Council. Congs. carried us thro' the war, and perhaps as well as any Govt. could have done. The complaints at present are not that the views of Congs. are unwise or unfaithful, but that that their powers are insufficient for the execution of their views. The national debt & the want of power somewhere to draw forth the National resources, are the great matters that press. All the States were sensible of the defect of power in Congs. He thought much might be said in apology for the failure of the State Legislatures to comply with the confederation. They were afraid of bearing too hard on the people, by accumulating taxes; no constitutional rule had been or could be observed in the quotas,--the accounts also were unsettled & every State supposed itself in advance, rather than in arrears. For want of a general system taxes to a due amount had not been drawn from trade which was the most convenient resource. As almost all the States had agreed to the recommendation of Congs. on the subject of an impost, it appeared clearly that they were willing to trust Congs. with power to draw a revenue from Trade. There is no weight therefore in the argument drawn from a distrust of Congs. for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Congs. indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to Congs. to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in Congs. He saw no reason why the State Legislatures should be unfriendly as had been suggested, to Congs. If they appoint Congs. and approve of their measures, they would be rather favorable and partial to them. The disparity of the States in point of size he perceived was the main difficulty. But the large States had not yet suffered from the equality of votes enjoyed by the small ones. In all [Volume 2, Page 29] great and general points, the interests of all the States were the same. The State of Virga. notwithstanding the equality of votes, ratified the Confederation without, or even proposing, any alteration. Massts. also ratified without any material difficulty &c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the States as some had proposed would dissolve our Treaties with foreign nations, which had been formed with us, as Confederated States. He did not however suppose that the creation of two branches in the Legislature would have such an effect. If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other. This was necessary to secure the rights of the lesser States; otherwise three or four of the large States would rule the others as they please. Each State like each individual had its peculiar habits usages and manners, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it.
Mr. Wilson, urged the necessity of two branches; observed that if a proper model was not to be found in other Confederacies it was not to be wondered at. The number of them was small & the duration of some at least short. The Amphyctionic & Achaean were formed in the infancy of political Science; and appear by their History & fate, to have contained radical defects, The Swiss & Belgic Confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: The German owed its continuance to the influence of the H. of Austria. He appealed to our own experience for the defects of our Confederacy. He had been 6 years in the 12 since the commencement of the Revolution, a member of Congress and had felt all its weaknesses. He appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes, than the Constitution of Congress. In many instances it went on even agst. the difficulties arising from Congs. themselves-- He admitted that the large States did accede as had been stated, to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding from the same motive to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures & the General Legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. A private citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. He observed that the addresses of Congs. to the people at large, had always been better received & produced greater effect, than those made to the Legislatures.
On the question for postponing in order to take up Mr. Lansings proposition "to vest the powers of Legislation in Congs."
Masst. no. Cont. ay. N. Y. ay. N. J. ay. Pa. no. Del. ay Md. divd. Va. no. N. C. no. S. C. no. Geo. no [Ayes--4; noes--6; divided--1.]
On motion of the Deputies from Delaware, the question on the 2d. Resolution in the Report from the Committee of the whole was postponed till tomorrow.
[1:344; Yates, 20 June]
Met pursuant to adjournment. Present 11 states.
Judge Elsworth. I propose, and therefore move, to expunge the word national, in the first resolve, and to place in the room of it, government of the United States--which was agreed to, nem. con.
Mr. Lansing then moved, that the first resolve be postponed, in order to take into consideration the following: That the powers of legislation ought to be vested in the United States in congress.
I am clearly of opinion that I am not authorized to accede to a system which will annihilate the state governments, and the Virginia plan is declarative of such extinction. It has been asserted that the public mind is not known. To some points it may be true, but we may collect from the fate of the requisition of the impost, what it may be on the principles of a national government.--When many of the states were so tenacious of their rights on this point, can we expect that thirteen states will surrender their governments up to a national plan? Rhode-Island pointedly refused granting it. Certainly she had a federal right so to do; and I hold it as an undoubted truth, as long as state distinctions remain, let the national government be modified as you please, both branches of your legislature will be impressed with local and state attachments. The Virginia plan proposes a negative on the state laws where in the opinion of the national legislature, they contravene the national government: and no state laws can pass unless approved by them.--They will have more than a law in a day to revise; and are they competent to judge of the wants and necessities of remote states?
This national government will, from their power, have great influence in the state governments; and the existence of the latter are only saved in appearance. And has it not been asserted that they expect their extinction? If this be the object, let us say so, and extinguish them at once. But remember, if we devise a system of government which will not meet the approbation of our constituents, we are dissolving the union--but if we act within the limits of our power, it will be approved of; and should it upon experiment prove defective, the people will entrust a future convention again to amend it. Fond as many are of a general government, do any of you believe it can pervade the whole continent so effectually as to secure the peace, harmony and happiness of the whole? The excellence of the British model of government has been much insisted on; but we are endeavoring to complicate it with state governments, [Volume 2, Page 30] on principles which will gradually destroy the one or the other. You are sowing the seeds of rivalship, which must at last end in ruin.
Mr. Mason. The material difference between the two plans has already been clearly pointed out. The objection to that of Virginia arises from the want of power to institute it, and the want of practicability to carry it into effect. Will the first objection apply to a power merely recommendatory? In certain seasons of public danger it is commendable to exceed power. The treaty of peace, under which we now enjoy the blessings of freedom, was made by persons who exceeded their powers. It met the approbation of the public, and thus deserved the praises of those who sent them. The impracticability of the plan is still less groundless. These measures are supported by one who, at his time of life, has little to hope or expect from any government. Let me ask, will the people entrust their dearest rights and liberties to the determination of one body of men, and those not chosen by them, and who are invested both with the sword and purse? They never will--they never can--to a conclave, transacting their business secret from the eye of the public. Do we not discover by their public journals of the years 1778--9, and 1780, that factions and party spirit had guided many of their acts? The people of America, like all other people, are unsettled in their minds, and their principles fixed to no object, except that a republican government is the best, and that the legislature ought to consist of two branches. The constitutions of the respective states, made and approved of by them, evince this principle. Congress, however, from other causes, received a different organization. What, would you use military force to compel the observance of a social compact? It is destructive to the rights of the people. Do you expect the militia will do it, or do you mean a standing army? The first will never, on such an occasion, exert any power; and the latter may turn its arms against the government which employs them. I never will consent to destroy state governments, and will ever be careful to preserve the one as the other. If we should, in the formation of the latter, have omitted some necessary regulation, I will trust my posterity to amend it. That the one government will be productive of disputes and jealousies against the other, I believe; but it will produce mutual safety. I shall close with observing, that though some gentlemen have expressed much warmth on this and former occasions, I can excuse it, as the result of sudden passion; and hope that although we may differ in some particular points, if we mean the good of the whole, that our good sense upon reflection, will prevent us from spreading our discontent further.
Mr. Martin. I know that government must be supported; and if the one was incompatible with the other, I would support the state government at the expense of the union--for I consider the present system as a system of slavery. Impressed with this idea, I made use, on a former occasion, of expressions perhaps rather harsh. If gentlemen conceive that the legislative branch is dangerous, divide them into two. They are as much the representatives of the states, as the state assemblies are the representatives of the people. Are not the powers which we here exercise given by the legislatures? (After giving a detail of the revolution and of state governments, Mr. M. continued). I confess when the confederation was made, congress ought to have been invested with more extensive powers; but when the states saw that congress indirectly aimed at sovereignty, they were jealous, and therefore refused any farther concessions. The time is now come that we can constitutionally grant them not only new powers, but to modify their government, so that the state governments are not endangered. But whatever we have now in our power to grant, the grant is a state grant, and therefore it must be so organized that the state governments are interested in supporting the union. Thus systematized, there can be no danger if a small force is maintained.
Mr. Sherman. We have found during the war that though congress consisted of but one branch, it was that body which carried us through the whole war, and we were crowned with success. We closed the war, performing all the functions of a good government, by making a beneficial peace. But the great difficulty now is, how we shall pay the public debt incurred during that war. The unwillingness of the states to comply with the requisitions of congress, has embarrassed us greatly.--But to amend these defects in government I am not fond of speculation. I would rather proceed on experimental ground. We can so modify the powers of congress, that we will all be mutual supporters of one another. The disparity of the states can be no difficulty. We know this by experience--Virginia and Massachusetts were the first who unanimously ratified the old confederation. They then had no claim to more votes in congress than one. Foreign states have made treaties with us as confederated states, not as a national government. Suppose we put an end to that government under which those treaties were made, will not these treaties be void?
Mr. Wilson. The question before us may admit of the three following considerations:
1. Whether the legislature shall consist of one or two branches.
2. Whether they are to be elected by the state governments or by the people.
3. Whether in proportion to state importance, or states individually.
Confederations are usually of a short date. The amphyctionic council was instituted in the infancy of the Grecian republics--as those grew in strength, the council lost its weight and power. The Achaean league met the same fate--Switzerland and Holland are supported in their confederation, not by its intrinsic merit, but the incumbent pressure of surrounding bodies. Germany is kept together by the house of Austria. True, congress carried us through the war even against its own weakness. That powers were wanting, you Mr. President, must have felt. To other causes, not to congress, must the success be ascribed. That the great states acceded to the confederation, and that they in the hour of danger, made a sacrifice of their interest to the lesser states is true. Like the wisdom of Solomon in adjudging the child to its true mother, from tenderness to it, the greater states well knew that the loss of a limb was fatal to the confederation--they too, through tenderness [Volume 2, Page 31] sacrificed their dearest rights to preserve the whole. But the time is come, when justice will be done to their claims--Situations are altered.
Congress have frequently made their appeal to the people. I wish they had always done it--the national government would have been sooner extricated.
Question then put on Mr. Lansing's motion and lost.--6 states against 4--one divided. New-York in the minority.
Adjourned till to-morrow morning.
[1:350; Hamilton, 20 June]
[1:354; Madison, 21 June]
Mr. Jonathan Dayton from N. Jersey took his seat.
Doctr. Johnson. On a comparison of the two plans which had been proposed from Virginia & N. Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from Va. did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Col. Hamilton) in his animadversions on the plan of N. Jersey, boldly and decisively contended for an abolition of the State Govts. Mr. Wilson & the gentleman from Virga. who also were adversaries of the plan of N. Jersey held a different language. They wished to leave the States in possession of a considerable, tho' a subordinate jurisdiction. They had not yet however shewn how this cd. consist with, or be secured agst. the general sovereignty & jurisdiction, which they proposed to give to the national Government. If this could be shewn in such a manner as to satisfy the patrons of the N. Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections [Volume 2, Page 32] would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, shd. retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Genl. Govt., without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils.
Mr. Wilson's respect for Dr. Johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked how the genl. Govt. and individuality of the particular States could be reconciled to each other; and how the latter could be secured agst. the former? Might it not, on the other side be asked how the former was to be secured agst. the latter? It was generally admitted that a jealousy & rivalship would be felt between the Genl. & particular Govts. As the plan now stood, tho' indeed contrary to his opinion, one branch of the Genl.--Govt. (the Senate or second branch) was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the Genl. Govt. would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the Genl. Govt. of defending itself by having an appointment of some one constituent branch of the State Govts. If a security be necessary on one side, it wd. seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the states from the Genl. Govt. In case a combination should be made by the large ones it wd produce a general alarm among the rest; and the project wd. be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any proposition in the National Legislature to encroach on the State Legislatures, he conceived a general alarm wd. take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and wd. finally spread among the people at large. The Genl. Govt. will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Govts. in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it had been apprehended. On the contrary, he conceived that in spite of every precaution the General Govt. would be in perpetual danger of encroachments from the State Govts.
Mr. Madison was of opinion that there was 1. less danger of encroachment from the Genl. Govt. than from the State Govts. 2. that the mischief from encroachments would be less fatal if made by the former, than if made by the latter. 1. All the examples of other confederacies prove the greater tendency in such systems to anarchy than to tyranny; to a disobedience of the members than to usurpations of the federal head. Our own experience had fully illustrated this tendency.--But it will be said that the proposed change in the principles & form of the Union will vary the tendency, that the Genl. Govt. will have real & greater powers, and will be derived in one branch at least from the people not from the Govts. of the States. To give full force to this objection, let it be supposed for a moment that indefinite power should be given to the Gen'l Legislature, and the States reduced to corporations dependent on the Genl. Legislature; why shd. it follow that the Gen'l Govt. wd. take from the States any branch of their power as far as its operation was beneficial, and its continuance desirable to the people? In some of the States, particularly in Connecticut, all the Townships are incorporated, and have a certain limited jurisdiction. Have the Representatives of the people of the Townships in the Legislature of the State ever endeavored to despoil the Townships of any part of their local authority? As far as this local authority is convenient to the people they are attached to it; and their representatives chosen by & amenable to them naturally respect their attachment to this, as much as their attachment to any other right or interest: The relation of a Genl. Govt. to State Govts. is parallel. 2. Guards were more necessary agst. encroachments of the State Govts.--on the Genl. Govt. than of the latter on the former. The great objection made agst. an abolition of the State Govts. was that the Genl. Govt. could not extend its care to all the minute objects which fall under the cognizance of the local jurisdictions. The objection as stated lay not agst. the probable abuse of the general power, but agst. the imperfect use that could be made of it throughout so great an extent of country, and over so great a variety of objects. As far as its operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the Genl. Govt. itself would concur with that of the people in the maintenance of subordinate Governments. Were it practicable for the Genl. Govt. to extend its care to every requisite object without the cooperation of the State Govts. the people would not be less free as members of one great Republic than as members of thirteen small ones. A citizen of Delaware was not more free than a citizen of Virginia: nor would either be more free than a citizen of America. Supposing therefore a tendency in the Genl. Government to absorb the State Govts. no fatal consequence could result. Taking the reverse of the supposition, that a tendency should be left in the State Govts. towards an independence on the General Govt. and the gloomy consequences need not be pointed out. The imagination of them, must have suggested to the States the experiment we are now making to prevent the calamity, and must have formed the chief motive with those present to undertake the arduous task.
On the question for resolving "that the Legislature ought to consist of two Branches"
Mass ay. Cont. ay. N. Y. no. N. Jersey no Pa. ay. Del. no. Md. divd. Va. ay. N. C. ay. S. C. ay. Geo. ay [Ayes--7; noes--3; divided--1.]
[1:362; Yates, 21 June]
Met pursuant to adjournment. Present 11 states.
Dr Johnson--It appears to me that the Jersey plan has for its principal object, the preservation of the state governments. So far it is a departure from the plan of Virginia, which although it concentres in a distinct national government, it is not totally independent of that of the states. A gentleman from New-York, with boldness and [Volume 2, Page 33] decision, proposed a system totally different from both; and though he has been praised by every body, he has been supported by none. How can the state governments be secured on the Virginia plan? I could have wished, that the supporters of the Jersey system could have satisfied themselves with the principles of the Virginia plan and that the individuality of the states could be supported. It is agreed on all hands that a portion of government is to be left to the states. How can this be done? It can be done by joining the states in their legislative capacity with the right of appointing the second branch of the national legislature, to represent the states individually.
Mr. Wilson. If security is necessary to preserve the one, it is equally so to preserve the other. How can the national government be secured against the states? Some regulation is necessary. Suppose the national government had a component number in the state legislature? But where the one government clashed with the other, the state government ought to yield, as the preservation of the general interest must be preferred to a particular. But let us try to designate the powers of each, and then no danger can be apprehended nor can the general government be possessed of any ambitious view to encroach on the state rights.
Mr. Madison. I could have wished that the gentleman from Connecticut had more accurately marked his objections to the Virginia plan. I apprehended the greatest danger is from the encroachment of the states on the national government--This apprehension is justly founded on the experience of ancient confederacies, and our own is a proof of it.
The right of negativing in certain instances the state laws, affords one security to the national government. But is the danger well founded? Have any state governments ever encroached on the corporate rights of cities? And if it was the case that the national government usurped the state government, if such usurpation was for the good of the whole, no mischief could arise.--To draw the line between the two, is a difficult task. I believe it cannot be done, and therefore I am inclined for a general government.
If we cannot form a general government, and the states become totally independent of each other, it would afford a melancholy prospect.
The 2d resolve was then put and carried--7 states for--3 against--one divided. New-York in the minority.
[1:366; King, 21 June]
Johnson--The Gentleman from NYk is praised by every gentleman, but supported by no gentleman--He goes directly to ye abolition of the State Governts. and the erection of a Genl. Govt.--All other Gentlemen agree that the national or Genl. Govt. shd. be more powerful--& the State Govts. less so. Provision is made in the Virgina Project to secure the Genl. Govt: but no provision is made for the security of the State Government--The plan from N Jersey provides for the security of the State & Genl. Govt.--If the advocates for the Genl. Govt. agreeably to the Virgin. Plan can show that the State Govts. will be secure from the Genl. Govt. we may all agree--
Wilson--We have provided that the States or yr. Legislatures shall appt. a Brh. of the national Govt. let the Natl. Govt. have a reciprocal power to elect or appoint one Br. of each State Govt--I dont see how the State Govts will be endangered--what power will the states possess, which the Genl. Govt. will wish to possess? their powers if added wd. not be of any considerable consequence--the attempt. however to acquire these powers wd. alarm the Citizens, who gave them to the States individually, and never intended them for the Genl. Govt.--The people wd. not suffer it--
Madison--The history of antient Confedys. proves that there never has existed a danger of the destruction of the State Govts. by encroachments of the Genl. Govts the converse of the proposition is true--I have therefore been assiduous to guard the Genl. from the power of the State Governments--the State Govts. regulate the conduct of their Citizens, they punish offenders--they cause Justice to be administered and do those arts wh endear the Govt. to its Citizens. The Citizens will not therefore suffer the Genl. Govt. to injure the State Govts--
The Convention agree yt the Legislature shd. consist of two Brs--
[2:14; Journal, 16 July]
It was moved and seconded to agree to the first clause of the sixth resolution reported from the Committee of the whole House namely
"That the national Legislature ought to possess the legislative rights vested in Congress by the confederation"
which passed unanimously in the affirmative
[2:16; Madison, 16 July]
The 6th Resol: in the Report from the Come. of the whole House, which had been postponed in order to consider the 7 & 8th. Resol'ns; was now resumed. see the Resoln:
The 1s. member "That the Natl. Legislature ought to possess the Legislative Rights vested in Congs. by the Confederation." was Agreed to nem. Con.
The next "And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U.S. may be interrupted by the exercise of individual legislation," being read for a question
Mr. Butler calls for some explanation of the extent of this power; particularly of the word incompetent. The vagueness of the terms rendered it impossible for any precise judgment to be formed.
Mr. Ghorum. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.
Mr. Rutlidge, urged the objection started by Mr. Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported.
On the question for a commitment, the States were equally divided
Mas. no. Cont. ay. N.J. no. Pa. no. Del. no. Md. ay. Va. ay. N.C. no. S.C. ay. Geo. ay: So it was lost. [Ayes--5; noes--5.][Volume 2, Page 34]
[2:21; Journal, 17 July]
It was moved and seconded to postpone the considn of the second clause of the Sixth resolution reported from the Committee of the whole House in order to take up the following
"To make laws binding on the People of the United States in all cases which may concern the common interests of the Union: but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned."
which passed in the negative [Ayes--2; noes--8.]
It was moved and seconded to alter the second clause of the 6th resolution so as to read as follows, namely
"and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation
which passed in the affirmative [Ayes--6; noes--4.]
[To agree to the second clause of the 6. resolution as amended. Ayes--8; noes--2.]
On the question to agree to the following clause of the sixth resolution reported from the Committee of the whole House, namely,
"to negative all laws passed by the several States contravening in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the Union"
it passed in the negative [Ayes--3; noes--7.].
[2:25; Madison, 17 July]
Mr. Governr. Morris moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the 2 branches of the Legislature. His object was to bring the House to a consideration in the abstract of the powers necessary to be vested in the general Government. It had been said, Let us know how the Govt. is to be modelled, and then we can determine what powers can be properly given to it. He thought the most eligible course was, first to determine on the necessary powers, and then so to modify the Governt. as that it might be justly & properly enabled to administer them. He feared if we proceded to a consideration of the powers, whilst the vote of yesterday including an equality of the States in the 2d. branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers.--this motion was not seconded. (It was probably approved by several members, who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.)
The 6th. Resoln. in the Report of the Come. of the whole relating to the powers, which had been postponed in order to consider the 7 & 8th. relating to the Constitution of the, Natl. Legislature, was now resumed--
Mr. Sherman observed that it would be difficult to draw the line between the powers of the Genl. Legislatures, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words "of individual legislation" line 4 inclusive, to insert "to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Govt. of such States only, and wherein the General welfare of the U. States is not concerned."
Mr. Wilson 2ded. the amendment as better expressing the general principle.
Mr Govr Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.
Mr. Sherman, in explanation of his ideas read an enumeration of powers, including the power of levying taxes on trade, but not the power of direct taxation.
Mr. Govr. Morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Genl. Govt. should recur to quotas & requisitions, which are subversive of the idea of Govt.
Mr. Sherman acknowledged that his enumeration did not include direct taxation. Some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any.
On Question on Mr. Sherman's motion, it passed in the negative
Mas. no. Cont. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes--2; noes--8.]
Mr. Bedford moved that the 2d. member of Resolution 6. be so altered as to read "and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent," or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation".
Mr. Govr. Morris 2ds. the motion.
Mr. Randolph. This is a formidable idea indeed. It involves the power of violating all the laws and constitutions of the States, and of intermeddling with their police. The last member of the sentence is also superfluous, being included in the first.
Mr. Bedford. It is not more extensive or formidable than the clause as it stands: no State being separately competent to legislate for the general interest of the Union.
On question for agreeing to Mr. Bedford's motion. it passed in the affirmative.
Mas. ay. Cont. no. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. no.[Ayes--6; noes--4.]
On the sentence as amended, it passed in the affirmative.
Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no.[Ayes--8; noes--2.]
The next.-- "To negative all laws passed by the several States contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of ye Union"
Mr. Govr. Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative [Volume 2, Page 35] authority should be given to the Genl. Government.
Mr. Sherman thought it unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived.
Mr. L. Martin considered the power as improper & inadmissable. Shall all the laws of the States be sent up to the Genl. Legislature before they shall be permitted to operate?
Mr. Madison, considered the negative on the laws of the States as essential to the efficacy & security of the Genl. Govt. The necessity of a general Govt. proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it. They can pass laws which will accomplish their injurious objects before they can be repealed by the Genl Legislre. or be set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less dependt. on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British System. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometines misapplied thro' ignorance or a partiality to one particular part of ye. empire: but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Natl. Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least, as to give a temporary effect to laws of immediate necessity.
Mr. Govr. Morris was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departmt. and if that security should fail; may be repealed by a Nationl. law.
Mr. Sherman. Such a power involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union, would if not negatived, be valid & operative.
Mr. Pinkney urged the necessity of the Negative.
On the question for agreeing to the power of negativing laws of States &c." it passed in the negative.
Mas. ay. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [Ayes--3; noes--7.]
[2:131, 151; Committee of Detail, I, V]
Resolved That the Legislature of the United States ought to possess the legislative Rights vested in Congress by the Confederation; and moreover to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.
. . . . .
The Continuation of the Scheme
1. To treat of the Powers of the legislative
2. To except from those Powers certain specified Cases
3. To render in certain Cases a greater Number than a Majority necessary
4. To assign to H. Repr--any Powers peculiarly belonging to it
5. To assign, in same Manner, Powers which may, with Propriety be vested in it.
[2:321; Journal, 18 Aug.]
The following additional powers proposed to be vested in the Legislature of the United States having been submitted to the consideration of the Convention--It was moved and seconded to refer them to the Committee to whom the proceedings of the Convention were referred
which passed in the affirmative
The propositions are as follows
To dispose of the unappropriated lands of the United States
To institute temporary governments for new States arising thereon
To regulate affairs with the Indians as well within as without the limits of the United States
To exercise exclusively Legislative authority at the seat of the general Government, and over a district around the same, not exceeding square miles: the consent of the Legislature of the State or States comprising such district being first obtained
To grant charters of incorporation in cases where the public good may require them, and the authority of a single State may be incompetent
To secure to literary authors their copy rights for a limited time
To establish an University
To encourage, by proper premiums and provisions, the advancement of useful knowledge and discoveries
To authorise the Executive to procure and hold for the use of the United States landed property for the erection of forts, magazines, and other necessary buildings
To fix and permanently establish the seat of Government of the United-States in which they shall possess the exclusive right of soil and jurisdiction
To establish seminaries for the promotion of literature and the arts and sciences
To grant charters of incorporation
To grant patents for useful inventions
To secure to authors exclusive rights for a certain time
To establish public institutions, rewards and immunities for the promotion of agriculture, commerce, trades, and manufactures.
That Funds which shall be appropriated for payment of public Creditors shall not during the time of such appropriation be diverted or applied to any other purpose--and [Volume 2, Page 36] to prepare a clause or clauses for restraining the Legislature of the United States from establishing a perpetual revenue
To secure the payment of the public debt.
To secure all Creditors, under the new Constitution, from a violation of the public faith. when pledged by the authority of the Legislature
To grant letters of marque and reprisal
To regulate Stages on the post-roads.
It was moved and seconded That a Committee to consist of a Member from each State be appointed to consider the necessity and expediency of the debts of the several States being assumed by the United States
which passed in the affirmative [Ayes--6; noes--4; divided--1.]
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.
© 1987 by The University of Chicago