The The Two CHAPTER VIII CREATION OF THE FEDERAL LEGISLATURE IN Mr. Randolph's resolutions the legislative power precedes the executive and the judiciary, and therefore was the first to be taken up; and the very first resolution of the group dealing with legislative power raised the issues which divided the delegates of the large and the small States into hostile camps. But the difference was adjusted by a concession of the extreme views of each, resulting in a compromise which made the Constitution a possibility; and indeed it may be stated in this connection, as it will be illustrated in the course of this narrative, that agreement was only possible on that principle of give and take obtaining in international conferences, and that the Constitution itself is the very creature of compromise and concession. The necessary spirit of concession was perhaps best stated by Mr. John Langdon of New Hampshire, whom, apropos of the Militia clause in the proposed Constitution, Mr. Madison reports as follows: Mr. Langdon said He could not understand the jealousy expressed by some Gentleman. The General & State Govts, were not enemies to each other, but different institutions for the good of the people of America. As one of the people he could say, the National Govt. is mine, the State Govt. is mineIn transferring power from one to the other I only take out of my left hand what it cannot so well use, and put it into my right hand where it can be better used.1 The plan provided for a national legislature of two houses, the first and the second, which, in the completed instrument appear as the Congress, consisting of a House of Representatives and a Senate, the first representing the people of the States according to their population, the second the States or the people within the States, and in which each is represented by two Senators, voting as individuals, not as delegates casting their vote under direct and specific instructions of the State or the citizens thereof. There was practically no objection to the bicameral system, although Pennsylvania, apparently influenced by Dr. Franklin's preference for a single chamber, proposed it, only to have it rejected.2 Nor was there any great opposition to the powers with which each of 1 Documentary History of the Constitution, Vol. iii, p. 597. 2" The 3d Resolution that the national Legislature ought to consist of two branches' was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Doc'. Franklin who was understood to be partial to a single House of Leg islation." Ibid., p. 26. 172 these branches was to be vested. These were indeed important matters, but they were rather questions of detail, after agreement upon the principle, and until that principle was accepted, a Constitution of the kind proposed by the Virginian plan was impossible. This principle was that the first branch should not merely be elected by the people of the several States but that the right of suffrage in the national legislature ought "to be proportioned to the quotas of contribution or to the number of free inhabitants." It was provided in the fifth resolution that the members of the second branch" ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures." 1 There was little or no opposition to the election of the first branch by the people of each and every State, and after no great discussion Mr. Dickinson's motion was accepted on June 7th,2 that the members of the second branch should be elected by the legislatures of the respective States, thus providing the basis for the compromise that the first branch should represent the people of the States as such, the second branch the States. The instructions of the State of Delaware, however, blocked the way, for although they did not prevent a double chamber, if the convention should think such a system desirable, they forbade the delegates of that State from accepting a system in which the States should not have an equal vote. This opposition was brought to a head by Mr. Madison, who moved, on May 30th, the first session in which the plan was discussed, "that the equality of suffrage established by the articles of Confederation ought not to prevail in the National legislature, and that an equitable ratio of representation ought to be substituted." 3 of Representation It does not need to be recalled that Mr. Madison represented the large State of Virginia. In view of the discussion of the matter of equality be- Questions tween members of that delegation and of Pennsylvania before the opening of the convention, it was to be expected that Mr. Madison would be seconded by a member of that delegation, and it was, very appropriately by Gouverneur Morris, who had raised the question. Mr. Madison, commenting upon his motion, says that it was "generally relished" and that it "would have been agreed to; when, Mr. Reed moved that the whole clause relating to the point of Representation be postponed; reminding the Com®. that the deputies from Delaware were restrained by their comission from assenting to any change of the rule of suffrage, and in case such a change should be fixed on, it might become their duty to retire from the Convention.* Large and Small States After some observations of a general nature, Mr. Read's motion to postpone prevailed, it being understood, according to Mr. Madison, that at most the State of Delaware would withdraw if this provision of the Virginian plan were agreed to. It is to be feared that Mr. Madison, as a representative of the large States, was oversanguine in this, as the experience of the convention, as well as of other international conferences, shows that, although little States may not carry their points against the large ones, they can by uniting their forces nevertheless prevent the larger States from working their will to the detriment of the smaller. It is not material to the present purpose to state in detail the arguments advanced by the delegates of the larger States in support of proportional representation, or to describe the generous sentiments in which they abounded, and the expressions of belief on their part that the rights of the smaller States would be sufficiently safeguarded by such an arrangement. Nor is it material to summarize the views of the small States, insisting upon an equality of right arising from the fact that they were States and from their suffering in a common cause, in which they had contributed their mite, in any case their all. Mr. Madison himself, in an elaborate argument on June 19th, stated it all in a nut-shell when he said that "The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from N. Jersey (Mr. Brearly and Mr. Patterson) that it would not be just to allow Virg. which was 16 times as large as Delaware an equal vote only. Their language was that it would not be safe for Delaware to allow Virga. 16 times as many votes. The expedient proposed by them was that all the States should be thrown into one mass and a new partition be made into 13 equal parts." 1 The fear of the small States to be absorbed into the larger or deprived of their influence, and the unwillingness of the large States to be reduced to an equality, as proposed by the small "fry." led to a readjustment of the views of both, and it is desirable to consider the steps by which this compromise was reached. The dissatisfaction of the delegates of the smaller States with the national plan was evident from the moment of its introduction, but, as in international conferences, they allowed themselves to be rushed along until, after conference among themselves, they might hit upon a plan of their own, which would unite them in opposition to the resolutions sought to be imposed upon them. In this particular case there was a reason for delay not ordinarily present in international conferences, in that the delegates of all the States had not appeared, including some from the lesser 1 Documentary History, Vol. iii, pp. 160–1. States who could be counted upon. Two States were not represented at all Equality in the earlier sessions, and it was felt that, if New Hampshire and Rhode Island should appear, they could, as small States, be relied upon as members of the opposition. It was bruited abroad that New Hampshire would be rep resented. On June 27th its delegates were appointed, although they attended for the first time nearly a month later, on July 23d. So certain were the small States of New Hampshire, that, during the session of June 30th, in the heat of debate on the question of equality, Mr. Brearly of New Jersey moved, according to Mr. Madison, "that the Presid'. write to the Executive of N. Hamshire, informing it that the business depending before the Convention was of such a nature as to require the immediate attendance of the deputies of that State. In support of his motion he observed that the difficulties of the subject and the diversity of opinions called for all the assistance we could possibly obtain." This apparently was the reason advanced by Mr. Brearly. The reason undoubtedly uppermost in his mind is thus added by Mr. Madison in parenthesis by way of comment: 1 It was well understood that the object was to add N. Hamshire to the no. of States opposed to the doctrine of proportional representation, which it was presumed from her relative size she must be adverse to. Mr. Patterson of New Jersey, the proposer of the small State plan, seconded the motion. Mr. Rutledge of South Carolina, which ranged itself with the large States, "could see neither the necessity nor propriety of such a measure. They are not unapprized of the meeting, and can attend if they choose. Rho. Island might as well be urged to appoint & send deputies. Are we to suspend the business until the deputies arrive? if we proceed he hoped all the great points would be adjusted before the letter could produce its effect." Mr. King, then of Massachusetts and later of New York, Senator of that State, Minister to England and candidate of the Federalist party for President, said "he had written more than once as a private correspondent, & the answers gave him every reason to expect that State would be represented very shortly, if it sha. be so at all. Circumstances of a personal nature had hitherto prevented it. A letter c. have no effect." Mr. Wilson of Pennsylvania, likewise one of the large States, "wished to know whether it would be consistent with the rule or reason of secrecy, to communicate to N. Hampshire that the business was of such a nature as the motion described. It wa. spread a great alarm. Besides he doubted the propriety of solicitating any State on the subject; the meeting being merely voluntary." Admitting that these reasons were well taken, it is to be observed that 1 Documentary History, Vol. iii, p. 247. the motion was made by a delegate of the State of New Jersey and seconded by a delegate of that State, and that all objections to the proposed course of action were made by delegates of the larger States, who hoped, as Mr. Rutledge bluntly put it, that "all the great points would be adjusted before the letter could produce its effect." Rhode Island, which undoubtedly would have voted with the smaller States, was not represented, and on June 11th, Abraham Baldwin of Georgia, which State usually voted with the larger ones, arrived. And it is worth while mentioning that he was a native of Connecticut, as was Oliver Ellsworth, a member of the convention from that State, who preferred to call it a middle rather than a small State. It is also noteworthy that Luther Martin of Maryland was, like Mr. Ellsworth, a graduate of Princeton College, and that both were partisans of equality. For whatever reason, Mr. Baldwin's vote on July 2d in favor of equality neutralized the vote of his colleague against it.1 With Georgia thus eliminated as a State, since it voted neither in favor of nor against equality, the convention divided, five States for and five States against, which fact inclined the minds of the large States to compromise. Other members had privately done as Mr. King said he had done, and on the 9th of June, when Luther Martin, the champion of equality, took his seat, Mr. Brearly, Chief Justice of New Jersey, wrote to Jonathan Dayton, urging his presence, saying that "We have been in a Committee of the Whole for some time, and have under consideration a number of very important propositions, none of which, however, have as yet been reported. My colleagues, as well as myself, are very desirous that you should join us immediately. The importance of the business really demands it." And it did.2 On the 13th the Committee of the Whole reported the Randolph plan, amending and expanding the original fifteen to nineteen articles. The convention was ready to take them up and would doubtless have done so on the morrow had not the smaller States then felt themselves sufficiently strong to take the initiative. Therefore, when the convention met on June 14, 1787, Mr. Patterson of New Jersey, to quote Mr. Madison's Notes, observed 1"It was Georgia that had changed. Her vote, hitherto regularly given to the majority, was this time divided. It was, in fact, one man only that had changed, and that man was Abraham Baldwin, a native of Connecticut, a graduate and sometime tutor of Yale, and but recently become a citizen of the state which he now sat for. The facts countenance a conjecture that the personal influence of the three leading men of his native state may have helped to turn him; but he may also have felt, as Georgia was the last state to vote, and had but two representatives, that he and his colleague had to decide whether the convention should continue in existence. He had said that he thought the second branch ought to be an aristocratic body, and his votes, both before and after this particular division, show that he was favorable to the national view. The chances are that to save the convention he had for the time being sacrificed his own opinions." W. G. Brown, The Life of Oliver Ellsworth, P. 144. 2 J. F. Jameson, Studies in the History of the Federal Convention, in the Annual Report of the American Historical Association for 1902, p. 98. |