The report of this committee of five was confusing to all sides. It proposed fifty-six members of the first branch, at the first election, and apportioned them among the States in such manner as to give twenty-six to the Southern States and thirty to the Northern. It next provided, in view of progressive changes in wealth and numbers, that the general legislature be authorized to augment the number from time to time, and also to fix the number, in case of the organization of new States, on the basis of their wealth and number of inhabitants. Here was formally introduced the principle of the representation of wealth. That principle was then adopted, nine States against two, but was not destined to remain. After further reference of the first clause to a grand committee, the Convention accepted their report upon it, which changed the number of the first House from fifty-six to sixty-five, and in a proportion which gave the Southern States thirty and the Northern thirty-five members, and ratified it by a vote of nine States against

two.

In respect to future and increased representation from old and new States it was contended, on the one hand, that the Atlantic States should always retain a majority of representatives over the growing West, which might otherwise by its numbers overrule their

interests; and, on the other, that the Southern States would yet have "three fourths of the people of America within their limits;" and some uniform standard of enumeration should 'be established which would assure to them a right to proportionate representation. All the States, including the Western, must be treated as equals, and no distinctions were admissible, according to Randolph and Madison. Enumeration of population; said others, would be a sufficient indication of relative wealth. The question became commingled with that of slavery and that of direct taxation, and involved, also, that of relative political power in States and between different sections of the Union, and produced a long and sharp debate. In the end they fell back on the taxing rule which had been once adopted, and which based popular representation on the number of free inhabitants, with three fifths of the slaves; and the Convention added a decennial census to regulate the increase of representation in the future. New States were to be governed by the same standard.

The question of the Senate was at last regulated by an agreement that each State should be represented by two senators," who shall vote per capita." Two opposite political objects were secured by this last senatorial adjustment. The States had an equal representation, as the small

States demanded; but the individuals voted, as the large States desired, and not the States, thus preserving the national principle. The state legislatures became simply electoral bodies to provide national senators. It passed by nine votes against Maryland alone. Thus terminated a contest which at one time threatened to defeat all the efforts of the Convention for a more perfect Union. The effect of this adjustment was the pacification of the small States, whose delegates largely changed their attitude from hostility to friendship in their relation to the national plan of government. Only once more was their alarm excited. Two days before the Constitution was signed the mode for amending the Constitution in the future was established. It could be amended by a vote of three fourths of the States. Again the small States murmured, fearing hidden dangers to their one right of equality. Their strongest opponent, Gouverneur Morris, thought their apprehensions should be quieted, and moved the proviso" that no State, without its consent, shall be deprived of its equal suffrage in the Senate," which was at once adopted without debate or opposition.

VII

THE DEBATE ON THE JUDICIAL
ORGANIZATION

UPON the question of establishing a national judiciary the progress of the Convention was less difficult. The tenure of the judges during good behavior and their security from legislative dictation by making their salaries permanent were agreed to without opposition when first presented in the Virginia plan. Later, in view of changes in money value and in society itself, increase of salary was allowed, but no reduction. The creation of inferior national tribunals was left ultimately to the discretion of Congress, since a part of the Convention were disposed to make the Supreme Court only a court of appeal from the state tribunals in cases where it should appear that national interests were involved.

The establishment of inferior courts was opposed by Butler and Martin, who believed them unnecessary and calculated to stir up the jealousies of state tribunals, with whose jurisdiction they will interfere. It was advocated by Gorham, Randolph, Gouverneur Morris, and Mason, who were unwilling to trust state

courts with the administration of national laws. The general and local policy would often be at variance. Circumstances not now foreseen might render the power absolutely necessary. Sherman was willing to give the power, but hoped for the use of the state tribunals whenever possible. The power to create them was granted to Congress without a formal division.

Touching the jurisdiction of the courts, Mr. Madison proposed that it "extend to all cases arising under the national laws, and to such other questions as may involve the national peace and harmony," and this principle was adopted without opposition. The extent of its jurisdiction was afterwards more carefully defined, yet remained so large as in the sequel to cause some apprehension to the States, which made it later the subject of the eleventh amendment, adopted in 1798. This amendment removed from their possible jurisdiction all suits brought against a State by citizens of any other State or of a foreign country.

James Wilson and Gouverneur Morris advocated the appointment of judges by the executive alone; John Rutledge and Charles Cotesworth Pinckney, by the legislature; Madison, Randolph, Sherman, and Martin, by the Senate. Gorham recommended their appointment by the executive, with the advice and