May, 1787

a. Loose sketches and notes taken in the convention, May, 1787 [1]

May, 1787
Major William Pierce

On the 30th May Govr. Randolph brought forward the principles of a federal Government. The idea suggested was, a national Government to consist of three branches. Agreed. [2] The Legislature to consist of two branches.

Resolved that the first branch of the Legislature ought to be elected by the People of the several States. [3]

A debate arose on this point.

Mr. Sherman thought the State Legislatures were better qualified to elect the Members than the people were.

Mr. Gerry was of the same opinion.

Mr. Mason was of the opinion that the appointment of the Legislature coming from the people would make the representation actual, but if it came from the State Legislatures it will be only virtual.

Mr. Wilson thought that one branch of the Legislature ought to be drawn from the people, because on the great foundation of the people all Government ought to rest. He would wish to see the new Constitution established on a broad basis, and rise like a pyramid to a respectable point.

Mr. Maddison (sic) was of the opinion that the appointment of the Members to the first branch of the national Legislature ought to be made by the people for two reasons, -- one was that it would inspire confidence, and the other that it would induce the Government to sympathize with the people.

Mr. Gerry was of opinion that the representation would not be equally good if the people chose them, as if the appointment was made by the State Legislatures. He also touched on the principles of liberal support, and reprobated that idea of oeconomy in the different States that has been so injuriously practised.

Mr. Strong would agree to the principle, provided it would undergo a certain modification, but pointed out nothing.

Mr. Butler was opposed to the appointment by the people, because the State Legislatures he thought better calculated to make choice of such Members as would best answer the purpose.

Mr. Spaight thought it necessary previous to the decision on this point that the mode of appointing the Senate should be pointed out. He therefore moved that the second branch of the Legislature should be appointed by the State Legislatures.

Mr. King observed that the Question called for was premature, and out of order, -- that unless we go on regularly from one principle to the other we shall draw out our proceedings to an endless length.

Mr. Butler called on Govr. Randolph to point out the number of Men necessary for the Senate, for on a knowledge of that will depend his opinion of the style and manner of appointing the first branch.

Mr. Randolph said he could not then point out the exact number of Members for the Senate, but he would observe that they ought to be less than the House of Commons. He was for offering such a check as to keep up the balance, and to restrain, if possible, the fury of democracy. He thought it would be impossible for the State Legislatures to appoint the Senators, because it would not produce the check intended. The first branch of the federal Legislature should have the appointment of the Senators, and then the check would be compleat.

Butler said that until the number of the Senate could be known it would be impossible for him to give a vote on it.

Mr. Wilson was of opinion that the appointment of the 2d branch ought to be made by the people provided the mode of election is as he would have it, and that is to divide the union into districts from which the Senators should be chosen. He hopes that a foederal Government may be established that will insure freedom and yet be vigorous.

Mr. Maddison (sic) thinks the mode pointed out in the original propositions the best.

Mr. Butler moved to have the proposition relating to the first branch postponed, in order to take up another,-which was that the second branch of the Legislature consist of blank.

Mr. King objected to the postponement for the reasons which he had offered before.

Mr. Sherman was of opinion that if the Senate was to be appointed by the first branch and out of that Body that it would make them too dependent, and thereby destroy the end for which the Senate ought to be appointed.

Mr. Mason was of opinion that it would be highly improper to draw the Senate out of the first branch; that it would occasion vacancies which would cost much time, trouble, and expence to have filled up,-besides which it would make the Members too dependent on the first branch.

Mr. Chs. Pinckney said he meant to propose to divide the Continent into four Divisions, out of which a certain number of persons shd. be nominated, and out of that nomination to appoint a Senate.

I was myself of opinion that it would be right first to know how the Senate should be appointed, because it would determine many Gentlemen how to vote for the choice of Members for the first branch, -- it appeared clear to me that unless we established a Government that should carry at least some of its principles into the mass of the people, we might as well depend upon the present confederation. If the influence of the States is not lost in some part of the new Government we never shall have any thing like a national institution. But in my opinion it will be right to shew the sovereignty of the State in one branch of the Legislature, and that should be in the Senate.

On the proposition in the words following -- "to legislate in all cases where the different States shall prove incompetent." [4]

Mr. Sherman was of opinion that it would be too indifinitely expressed, -- and yet it would be hard to define all the powers by detail. It appeared to him that it would be improper for the national Legislature to negative all the Laws that were connected with the States themselves.

Mr. Maddison (sic) said it was necessary to adopt some general principles on which we should act, -- that we were wandering from one thing to another without seeming to be settled in any one principle.

Mr. Wythe observed that it would be right to establish general principles before we go into detail, or very shortly Gentlemen would find themselves in confusion, and would be obliged to have recurrence to the point from whence they sat out.

Mr. King was of opinion that the principles ought first to be established before we proceed to the framing of the Act. He apprehends that the principles only go so far as to embrace all the power that is given up by the people to the Legislature, and to the foederal Government, but no farther.

Mr. Randolph was of opinion that it would be impossible to define the powers and the length to which the federal Legislature ought to extend just at this time.

Mr. Wilson observed that it would be impossible to enumerate the powers which the federal Legislature ought to have.

Mr. Maddison (sic) said he had brought with him a strong prepossession for the defining of the limits and powers of the federal Legislature, but he brought with him some doubts about the practicability of doing it: -- at present he was convinced it could not be done.

ON THE EXECUTIVE POWER [5]

Mr. Wilson said the great qualities in the several parts of the Executive are vigor and dispatch. Making peace and war are generally determined by Writers on the Laws of Nations to be legislative powers.

Mr. Maddison (sic) was of opinion that an Executive formed of one Man would answer the purpose when aided by a Council, who should have the right to advise and record their proceedings, but not to control his authority.

Mr. Gerry was of opinion that a Council ought to be the medium through which the feelings of the people ought to be communicated to the Executive.

Mr. Randolph advanced a variety of arguments opposed to a unity of the Executive, and doubted whether even a Council would be sufficient to check the improper views of an ambitious Man. A unity of the Executive he observed would savor too much of a monarchy.

Mr. Wilson said that in his opinion so far from a unity of the Executive tending to progress towards a monarchy it would be the circumstance to prevent it. A plurality in the Executive of Government would probably produce a tyranny as bad as the thirty Tyrants of Athens, or as the Decemvirs of Rome.

A confederated republic joins the happiest kind of Government with the most certain security to liberty.

(A consideration)

Every Government has certain moral and physical qualities engrafted in their very nature,-one operates on the sentiments of men, the other on their fears.

Mr. Dickinson was of opinion that the powers of the Executive ought to be defined before we say in whom the power shall vest.

Mr. Bedford [6] said he was for appointing the Executive Officer for three years, and that he should be eligible for nine years only.

Mr. Maddison (sic) observed that to prevent a Man from holding an Office longer than he ought, he may for mal-practice be impeached and removed; -- he is not for any ineligibility.

Mr. Charles Pinckney was of opinion [7] that the election of the Executive ought to be by the national Legislature, that then respect will be paid to that character best qualified to fill the Executive department of Government.

Mr. Wilson proposed that the U. States should be divided into districts, each of which should elect a certain number of persons, who should have the appointment of the Executive.

Mr. Gerry observed that if the appointment of the Executive should be made by the national Legislature, it would be done in such a way as to prevent intrigue. If the States are divided into districts, there will be too much inconvenience in nominating the Electors.

Mr. Wm'son [8] observed that if the Electors were to chuse the Executive it would be attended with considerable experience and trouble; whereas the appointment made by the Legislature would be easy, and in his opinion, the least liable to objection.

On the subject of salary to the Executive Dr. Franklin arose and produced a written Speech. [9] It was, on account of his age, read by Mr. Wilson, in which was advanced an opinion that no salaries should be allowed the public Officers, but that their necessary expences should be defrayed. This would make Men, he said, more desirous of obtaining the Esteem of their Country-men, -- than avaricious or eager, in the pursuit of wealth.

Mr. Dickinson moved [10] that the Executive should be removed at the request of a majority of the State Legislatures.

No Government can produce such good consequences as a limitted monarchy, especially such as the English Constitution.

The application of the several Legislatures brings with it no force to the national Legislature.

Mr. Maddison (sic) said it was far from being his wish that every executive Officer should remain in Office, without being amenable to some Body for his conduct.

Mr. Randolph [11] was for appointing three Persons, from three districts of the Union, to compose the Executive. A single Person may be considered the foetus [embryo] of a Monarchy.

Mr. Butler was of opinion that a unity of the Executive would be necessary in order to promote dispatch; -- that a plurality of Persons would never do. When he was in Holland the States general were obliged to give up their power to a French Man to direct their military operations.

Mr. Wilson [12] said that all the Constitutions of America from New Hampshire to Georgia have their Executive in a single Person. A single Person will produce vigor and activity. Suppose the Executive to be in the hands of a number they will probably be divided in opinion.

It was proposed that the Judicial should be joined with the Executive to revise the Laws. [13]

Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution.

Dr. Franklin thinks it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature; and mentioned the influence of the British King, and the influence which a Governor of Pennsylvania once had in arresting (for the consideration of an encrease of salary) the power out of the hands of the Legislature.

Mr. Maddison (sic) was of opinion [14] that no Man would be so daring as to place a veto on a Law that that had passed with the assent of the Legislature.

Mr. Butler observed that power was always encreasing on the part of the Executive. When he voted for a single Person to hold the Executive power he did it that Government be expeditiously executed, and not that it should be clogged.

Mr. Bedford was of opinion that no check was necessary on a Legislature composed as the national Legislature would be, with two branches,-an upper and a lower House.

Mr. Mason was of opinion that it would be so dangerous for the Executive in a single Person to negative a Law that the People will not accept of it. He asked if Gentlemen had ever reflected on that awful period of time between the passing and final adoption of this constitution; -- what alarm might possibly take place in the public mind.

Mr. Maddison (sic) in a very able and ingenious Speech, [15] ran through the whole Scheme of the Government, -- pointed out all the beauties and defects of ancient Republics; compared their situation with ours wherever it appeared to bear any anology, and proved that the only way to make a Government answer all the end of its institution was to collect the wisdom of its several parts in aid of each other whenever it was necessary. Hence the propriety of incorporating the Judicial with the Executive in the revision of the Laws. He was of opinion that by joining the Judges with Supreme Executive Magistrate would be strictly proper, and would by no means interfere with that indepence so much to be approved and distinguished in the several departments.

Mr. Dickinson could not agree with Gentlemen in blending the national Judicial with the Executive, because the one is the expounder, and the other the Executor of the Laws.

Mr. Rutledge was of opinion that it would be right to make the adjudications of the State Judges, appealable to the national Judicial.

Mr. Maddison (sic) was for appointing the Judges by the Senate.

Mr. Hamilton suggested the idea of the Executive's appointing or nominating the Judges to the Senate which should have the right of rejecting or approving.

Mr. Butler was of opinion [16] that the alteration of the confederation ought not to be confirmed by the different Legislatures because they have sworne to support the Government under which they act, and therefore that Deputies should be chosen by the People for the purpose of ratifying it.

Mr. King thought that the Convention would be under the necessity of referring the amendments to the different Legislatures, because one of the Articles of the confederation expressly make it necessary.

As the word perpetual in the Articles of confederation gave occasion for several Members to insist upon the main principles of the confederacy, i.e., that the several States should meet in the general Council on a footing of compleat equality each claiming the right of sovereignty, Mr. Butler observed that the word perpetual in the confederation meant only the constant existence of our Union, and not the particular words which compose the Articles of the union.

Some general discussions came on. -- Mr. Charles Pinckney said [17] he was for appointing the first branch of the Legislature by the State Legislatures, and that the rule for appointing it ought to be by the contributions made by the different States.

Mr. Wilson was of opinion that the Judicial, Legislative and Executive departments ought to be commensurate.

Mr. Cotesworth Pinckney was of opinion that the State Legislatures ought to appoint the 1st branch of the national Legislature; -- that the election cannot be made from the People in South Carolina. If the people choose it will have a tendency to destroy the foundation of the State Governments.

Mr. Maddison (sic) observed that Gentlemen reasoned very clear on most points under discussion, but they drew different conclusions. What is the reason? Because they reason from different principles. The primary objects of civil society are the security of property and public safety.

b. Characters in the convention of the States held at Philadelphia, May, 1787

[1] Text and footnotes reprinted from The American Historical Review, vol. III., (1898), pp. 317-334. Governor Randolph brought forward the principles suggested by the Virginia delegation, on May 29; Documentary History, I. 55, Madison Papers (Gilpin) 728-735; Yates, in Elliot 1836, I. 390, 391. Major Pierce took his seat on May 31; Doc. Hist. I. 56.

[2] May 30. Doc. Hist., I. 200; Madison Pabers, 749; Yates in Elliot, I. 392.

[3] May 31. Doc. Hist., I. 201, 202; Elliot, I. 392, 393. The debate which here follows is reported in the Madison Papers, 753-759, in which however the remarks of Strong, the first and second speeches of King, the third and fourth of Butler, and the final remarks of Mason, are omitted. The final remarks of Sherman are here given at greater length.

[4] Doc. Hist., I. 202. The debate on this question is presented in the Madison Papers, 760-761, but none of the remarks here reported are to be found there, save the second speech of Madison.

[5] June I. Doc. Hist. I, 203, 204. An ampler report of this debate is given in the Madison Papers, 762-764 where however the first remarks of Madison here given and those of Dickinson are omitted; but they are summarized in King's notes, Life and Correspondence, I, 588, 589.

[6] The question was now on the duration of the term of the executive. Doc. Hist., I. 204; Madison Papers 766, 767, with omission of the remarks of Madison here reported.

[7] June 2. The question was now on the mode of appointing the executive; Doc. Hist, I. 295. The following debate, except the remarks of Charles Pinckney, is to be found in the Madison Papers, 768-770.

[8] Hugh Williamson of North Carolina.

[9] Doc. Hist., I. 206. The text of Dr. Franklin's speech is given in the Madison Papers, 771-775.

[10] Doc. Hist., I. 206, 207. Excepting Madison's own remarks, the ensuing debate reported in the Madison Papers, 776-778.

[11] The question was now on the motion that the exceutive consist of a single person. Doc. Hist., I, 207, 208; Madison Papers, 779-782.

[12] June 4.

[13] Doc. Hist., I, 208, 209. The notes which follow relate to the debate on this proposition and on that for a veto by the executive; Madison Papers, 784- 789, where, however, King's interesting remark about the judiciary holding statutes void does not appear.

[14] It appears that this passage was animadverted upon when these notes were printed in the Savannah Georgian in 1828. In Madison's letter to Tefft, cited above, p. 310, speaking of the numbers of that news paper which he had once received, he says, "They were probably sent on account of a marginal suggestion of inconsistency between language held by me in the Convention with regard to the Executive veto, and the use made of the power by myself, when in the Executive Administration. The inconsistency is done away by the distinction, not adverted to, between an absolute veto, to which the language was applied, and the qualified veto which was exercised" (Writings, IV. 139). The marginal note in the newspaper reads: "This same Mr. Madison did so when President. Eds. Geo."

[15] June 6. If Madison's report is right, it would appear that Pierce has here fused two speeches made by Madison on that day, one on the election of the first branch by the legislatures, the other on the association of the judiciary in the revisal of the laws, a question postponed from June 4. Doc. Hist., I. 214; Madison Papers, 804-806, 809-811. Dickinson's remarks, which here follow, relate to this latter question; King, I. 592. But those of Rutledge and Madison which succeed were, according to the Madison Papers, 792-793, made on June 5 in the debate on the election of the judiciary. Hamilton's remarks are not given there.

[16] The following remarks were apparently made in the debate of June 5 on the fifteenth Virginia resolution, that relating to ratification. Doc. Hist., I. 212; Madison Papers, 797, 798 (Butler's second speech being omitted).

[17] June 6. Doc. Hist., I. 213; Madison Papers, 800. Wilson, ibid., 801, 802 C. C. Pinckney, ibid., 808. The concluding remarks of Madison I do not identify.