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The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary Department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate, and require some precautions in the case of regulating navigation, commerce and imposts; but he could not see that it had any connection with the Judiciary department.
On the question, the motion being now, "that the Executive should nominate, and such nominations should become appointments unless disagreed to by the Senate," Masschusetts, Pennsylvania, Virginia, aye-3; Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, no-6. 294
On the question for agreeing to the clause as it stands, by which the Judges are to be appointed by the second branch,-Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye -6; Massachusetts, Pennsylvania, Virginia, no-3; so it passed in the affirmative,
In Convention,-Mr. JOHN LANGDON and Mr. NICHOLAS GILLMAN, from New Hampshire, took their
The seventeenth Resolution, that provision ought
to be made for future amendments of the Articles of the Union, was agreed to, nem. con.
The eighteenth Resolution, requiring the Legislative, Executive and Judiciary of the States to be bound by oath to support the Articles of Union, was taken into consideration.
Mr. WILLIAMSON suggests, that a reciprocal oath should be required from the National officers, to support the Governments of the States.
Mr. GERRY moved to insert, as an amendment, that the oath of the officers of the National Government also should extend to the support of the National Government, which was agreed to, nem. con.
Mr. WILSON said, he was never fond of oaths, considering them as a left-handed security only. A good government did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing government, in case future alterations should be necessary; and prove an obstacle to the seventeenth Resolution, just agreed to.
Mr. GORHAM did not know that oaths would be of much use; but could see no inconsistency between them and the seventeenth Resolution, or any regular amendment of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution could never be regarded as a breach of the Constitution, or of any oath to support it.
Mr. GERRY thought, with Mr. GORHAM, there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side, he thought one good
effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of, the general system, and had, in all cases of interference given a preference to the State Governments. The proposed oath will cure that error.
The Resolution (the eighteenth) was agreed to,
The nineteenth Resolution, referring the new Constitution to Assemblies to be chosen by the people, for the express purpose of ratifying it, was next taken into consideration.
Mr. ELLSWORTH moved that it be referred to the Legislatures of the States for ratification. Mr. PATTERSON Seconded the motion.
Colonel MASON considered a reference of the plan to the authority of the people, as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions-he knew there was no power in some of them-that could be competent to this object. Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government. Another strong reason was, that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures, having equal authority, could undo the acts of their VOL. I.—74*
predecessors; and the National Government would stand in each State on the weak and tottering foundation of an act of Assembly. There was a remaining consideration, of some weight. In some of the States, the governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit., that opposition as well from the States as from individuals, will be made to the system to be proposed. Will it not then be highly imprudent to furnish any unnecessary pretext, by the mode of ratifying it? Added to other objections against a ratification by the Legislative authority only, it may be remarked, that there have been instances in which the authority of the common law has been set up in particular States against that of the Confederation, which has had no higher sanction than Legislative ratification. Whose opposition will be most likely to be excited against the system? That of the local demagogues who will be degraded by it, from the importance they now hold. These will spare no efforts to impede that progress in the popular mind, which will be necessary to the adoption of the plan; and which every member will find to have taken place in his own, if he will compare his present opinions with those he brought with him into the Convention. It is of great importance, therefore, that the consideration of this subject
should be transferred from the Legislatures, where this class of men have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of consideration, that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon, to refer the question to the people.
Mr. GERRY. The arguments of Colonel MASON and Mr. RANDOLPH prove too much. They prove an unconstitutionality in the present Federal system, and even in some of the State Governments. Inferences drawn from such a source must be inadmissible. Both the State Governments and the Federal Government have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last Article of it, authorizing alterations, must consequently be so as well as the others; and every thing done in pursuance of the article, must have the same high authority with the article. Great confusion, he was confident, would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose, that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.
Mr. GORHAM was against referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose will discuss the subject more candidly than members of the Legislature, who are to lose the power which is to be given up to the General Government. 2. Some of the Legislatures are