will consequently be more difficult, in these cases, to get the plan through the legislatures than through a convention. 3. In the states, many of the ablest men are excluded from the legislatures, but may be elected into a convention. Among these may be ranked many of the clergy, who are generally friends to good government. Their services were found to be valuable in the formation and establishment of the constitution of Massachusetts. 4. The legislatures will be interrupted with a variety of little business; by artfully pressing which, designing men will find means to delay from year to year, if not to frustrate altogether, the national system. 5. If the last article of the Confederation is to be pursued, the unanimous concurrence of the states will be necessary. But will any one say that all the states are to suffer themselves to be ruined, if Rhode Island should persist in her opposition to general measures? Some other states might also tread in her steps. The present advantage, which New York seems to be so much attached to, of taxing her neighbors by the regulation of her trade, makes it very probable that she will be of the number. It would, therefore, deserve serious consideration, whether provision ought not to be made for giving effect to the system, without waiting for the unanimous concurrence of the states. Mr. ELLSWORTH. If there be any legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents, and. pursue such a mode as would be competent. He thought more was to be expected from the legislatures, than from the people. The prevailing wish of the people in the Eastern States is, to get rid of the public debt; and the idea of strengthening the national government carries with it that of strengthening the public debt. It was said by Col. Mason, in the first place, that the legislatures have no authority in this case; and in the second, that their successors, having equal authority, could rescind their acts. As to the second point he could not admit it to be well founded. An act to which the states, by their legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the first point, he observed that a new set of ideas seemed to have crept in since the Articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congress applied on subsequent occasions for further powers? To the legislatures, not to the people. The fact is, that we exist at present and we need not inquire how, as a federal society, united by a charter, one article of which is, that alterations therein may be made by the legislative authority of the states. It has been said, that, if the Confederation is to be observed, the states must unanimously concur in the proposed innovations. He would answer, that, if such were the urgency and necessity of our situation as to warrant a new compact among a part of the states, founded on the consent of the

people, the same pleas would be equally valid in favor of a partial compact, founded on the consent of the legislatures.

Mr. WILLIAMSON thought the resolution (the nineteenth) so expressed, as that it might be submitted either to the legislatures or to conventions recommended by the legislatures. He observed that some legislatures were evidently unauthorized to ratify the system. He thought, too, that conventions were to be preferred, as more likely to be composed of the ablest men in the states.

Mr. GOUVERNEUR MORRIS considered the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system on the consent of the people of a part of the states, in favor of a like establishment on the consent of a part of the legislatures, as a non sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the legislatures. Legislative alterations not conformable to the federal compact would clearly not be valid. The judges would consider them as null and void. Whereas, in case of an appeal to the people of the United States, the supreme authority, the federal compact may be altered by a majority of them, in like manner as the constitution of a particular state may be altered by a majority of the people of the state. The amendment moved by Mr. Ellsworth erroneously supposes, that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.

Mr. KING thought with Mr. Ellsworth that the legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people. He thought with Mr. Ellsworth, also, that the plea of necessity was as valid in the one case as the other. At the same time, he preferred a reference to the authority of the people, expressly delegated to conventions, as the most certain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution, as well as the most likely means of drawing forth the best men in the states to decide on it. He remarked, that, among other objections made in the state of New York to granting powers to Congress, one had been, that such powers as would operate within the states could not be reconciled to the Constitution, and therefore were not grantable by the legislative authority. He considered it as of some consequence, also, to get rid of the scruples which some members of the state legislatures might derive from their oaths to support und maintain the existing constitutions.

Mr. MADISON thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions; and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence. There might indeed be some constitutions within the Union, which had given a power to the legislature to concur in alterations of the federal compact. But there were certainly some which had not; and, in the case of these, a ratification

must of necessity be obtained from the people. He considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a preëxisting law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes, in point of expediency, he thought all the considerations which rec ommended this Convention, in preference to Congress, for proposing the reform, were in favor of state conventions, in preference to the legislatures, for examining and adopting it.

On the question on Mr. Ellsworth's motion to refer the plan to the legislatures of the states,

Connecticut, Delaware, Maryland, ay, 3; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no, 7.

Mr. GOUVERNEUR MORRIS moved, that the reference of the plan be made to one general convention, chosen and authorized by the people, to consider, amend, and establish the same. seconded.

Not

On the question for agreeing to the nineteenth resolution, touching the mode of ratification as reported from the committee of the whole, viz., to refer the Constitution, after the approbation of Congress, to assemblies chosen by the people,

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 9; Delaware, no, 1.185

Mr. GOUVERNEUR MORRIS and Mr. KING moved, that the representation in the second branch consist of members from each state, who shall vote per capita.

Mr. ELLSWORTH said he had always approved of voting in that mode.

Mr. GOUVERNEUR MORRIS moved to fill the blank with three. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each state, and a majority be made a quorum, the power would be lodged in fourteen members, which was too small a number for such a trust.

Mr. GORHAM preferred two to three members for the blank. A small number was most convenient for deciding on peace and war, &c., which he expected would be vested in the second branch. The number of states will also increase. Kentucky, Vermont, the Prov ince of Maine, and Franklin, will probably soon be added to the

present number. He presumed, also, that some of the largest states would be divided. The strength of the general government will be, not in the largeness, but the smallness, of the states.

Col. MASON thought three from each state, including new states, would make the second branch too numerous. Besides other objections, the additional expense ought always to form one, where it was not absolutely necessary.

Mr. WILLIAMSOŇ. If the number be too great, the distant states will not be on an equal footing with the nearer states. The latter can more easily send and support their ablest citizens. He approved of the voting per capita.

On the question for filling the blank with "three,"

Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, 8,186

On the question for filling it with "two," - agreed to, nem. con. Mr. L. MARTIN was opposed to voting per capita, as departing from the idea of the states being represented in the second branch.

Mr. CARROLL was not struck with any particular objection against the mode; but he did not wish so hastily to make so material an innovation.

On the question on the whole motion, viz., "the second branch. to consist of two members from each state, and to vote per capita,”New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, ay, 9; Maryland, no, 1.

Mr. HOUSTON and Mr. SPAIGHT moved, "that the appointment of the executive by electors chosen by the legislatures of the states," be reconsidered. Mr. HOUSTON urged the extreme inconveniency and the considerable expense of drawing together men from all the states for the single purpose of electing the chief magistrate. On the question, which was put without debate,—

New Hampshire, Massachusetts, Connecticut, Delaware, North Carolina, South Carolina, Georgia, ay, 7; Pennsylvania, Maryland, Virginia, no, 3.

Ordered, that to-morrow be assigned for the reconsideration.
Connecticut and Pennsylvania, no; all the rest, ay.

Mr. GERRY moved, that the proceedings of the Convention for the establishment of a national government (except the part relating to the executive) be referred to a committee to prepare and report a constitution conformable thereto.

Gen. PINCKNEY reminded the Convention, that, if the committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his state to vote against their report.187

The appointment of a committee, as moved by Mr. Gerry, was agreed to, nem. con.

On the question, Shall the committee consist of ten members, one from each state present?

All the states were no, except Delaware, ay.

Shall it consist of seven members?

New Hampshire, Massachusetts, Connecticut, Maryland, South Carolina, ay, 5; Per nsylvania, Delaware, Virginia, North Carolina, Georgia, no, 5.

The question being lost by an equal division of votes, it was agreed, nem. con., that the committee should consist of five members, to be appointed to-morrow.

Adjourned.

TUESDAY, July 24.

In Convention. The appointment of the executive by electors being reconsidered,

Mr. HOUSTON moved, that he be appointed by the national legislature, instead of "electors appointed by the state legislatures," according to the last decision of the mode. He dwelt chiefly on the improbability that capable men would undertake the service of elect

ors from the more distant states.

Mr. SPAIGHT seconded the motion.

Mr. GERRY opposed it. He thought there was no ground to apprehend the danger urged by Mr. Houston. The election of the executive magistrate will be considered as of vast importance, and will create great earnestness. The best men, the governors of the states, will not hold it derogatory from their character to be the electors. If the motion should be agreed to, it will be necessary to make the executive ineligible a second time, in order to render him independent of the legislature; which was an idea extremely repugnant to his way of thinking.

Mr. STRONG supposed that there would be no necessity, if the executive should be appointed by the legislature, to make him ineligible a second time; as new elections of the legislature will have intervened; and he will not depend, for his second appointment, on the same set of men that his first was received from. It had been suggested that gratitude for his past appointment would produce the same effect as dependence for his future appointment. He thought very differently. Besides, this objection would lie against the electors, who would be objects of gratitude as well as the legislature. It was of great importance not to make the government too complex, which would be the case if a new set of men, like the electors, should be introduced into it. He thought, also, that the first characters in the states would not feel sufficient motives to undertake the office of electors.

Mr. WILLIAMSON was for going back to the original ground, to elect the executive for seven years, and render him ineligible a second time. The proposed electors would certainly not be men of the first, nor even of the second, grade in the states. These would all prefer a seat in the Senate, or the other branch of the legislature. He did not like the unity in the executive. He had wished the executive power to be lodged in three men, taken from three districts, into which the states should be divided. As the executive is to have a kind of veto on the laws, and there is an essential difference of interests between the Northern and Southern States, particularly in