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Confederation rendered the Legislature competent to the ratification. The people of the Southern States, where the Federal Articles had been ratified by the Legislatures only, had since, impliedly, given their sanction to it. He thought, notwithstanding, that there might be policy in varying the mode. A convention being a single house, the adoption may more easily be carried through it, than through the Legislatures, where there are several branches. The Legislatures also, being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers, it is immaterial to them, by which government they are possessed, provided they be well employed.
Mr. Wilson took this occasion to lead the Committee, by a train of observations, to the idea of not suffering a disposition in the plurality of States, to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest.*
Mr. PINCKNEY hoped, that, in case the experiment should not unanimously take place, nine States might be authorized to unite under the same government.
The fifteenth Resolution was postponed, nem. con. Mr. PINCKNEY and Mr. RUTLEDGE moved, that
* This hint was probably meant in terrorem to the smaller States of Now Jersey and Delaware. Nothing was said in reply to it.
to-morrow be assigned to reconsider that clause of the fourth Resolution which respects the election of the first branch of the National Legislature; which passed in the affirmative,–Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, aye 6; Massachusetts, New Jersey, North Carolina, South Carolina, Georgia, no—5.
Mr. RUTLEDGE having obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause in the ninth Resolution should be expunged; arguing, that the State tribunals might and ought to be left in all cases to decide in the first instance, the right of appeal to the supreme national tribunal being sufficient to secure the national rights and uniformity of judgments; that it was making an unnecessary encroachment on the jurisdiction of the States, and creating unnecessary obstacles to their adoption of the new system.
Mr. SHERMAN seconded the motion.
Mr. Madison observed, that unless inferior tribunals were dispersed throughout the Republic with final jurisdiction in many cases, appeals would be multiplied to a most oppressive degree; that, besides, an appeal would not in many cases be a remedy. What was to be done aster improper verdicts, in State tribunals, obtained under the biassed directions of a dependent judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the supreme bar, would oblige the parties to bring up their witnesses, though ever so distant from the seat of the court. An effective Judiciary establishment commensurate to the Legislative authority, was essential. A government, without a proper Executive and Judiciary, would be the mere trunk of a body, without arms or legs to act or
Mr. Wilson opposed the motion on
like grounds. He said the admiralty jurisdiction ought to be given wholly to the National Government, as it related to cases not within the jurisdiction of particular States, and to a scene in which controversies with foreigners would be most likely to happen.
Mr. SHERMAN was in favor of the motion. He dwelt chiefly on the supposed expensiveness of having a new set of courts, when the existing State courts would answer the same purpose.
Mr. Dickinson contended strongly, that if there was to be a National Legislature, there ought to be a National Judiciary, and that the former ought to have authority to institute the latter.
On the question for Mr. Rutledge's motion to strike out “ inferior tribunals,” it passed in the affirmative,-Connecticut, New York, New Jersey, North Carolina, South Carolina, Georgia, aye—6; Pennsylvania, Delaware, Maryland, Virginia, no—4
4; Massachusetts, divided.
Mr. Wilson and Mr. Madison then moved, in pursuance of the idea expressed above by Mr. DickinSON,
to add to the ninth Resolution the words following : “ that the National Legislature be empowered to institute inferior tribunals.” They observed, that there was a distinction between establishing such
tribunals absolutely, and giving a discretion to the Legislature to establish or not to establish them. They repeated the necessity of some such provision.
Mr. Butler. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive.
Mr. King remarked, as to the comparative expense, that the establishment of inferior tribunals would cost infinitely less than the appeals that would be prevented by them.
On this question, as moved by Mr. Wilson and Mr. Madison,—Massachusetts, New Jersey,* Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye—8; Connecticut, South Carolina, no—2; New York, divided. 194
The Committee then rose, and the House adjourned.
WEDNESDAY, JUNE 6TH.
In Committee of the Whole.—Mr. PINCKNEY, according to previous notice, and rule obtained, moved, " that the first branch of the National Legislature be elected by the State Legislatures, and not by the people;" contending that the people were less fit
* In the printed Journal, New Jersey, no.
judges in such a case, and that the Legislatures would be less likely to promote the adoption of the new government if they were to be excluded from all share in it.
Mr. RUTLEDGE seconded the motion.
Mr. Gerry. Much depends on the mode of election. In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme. Hence in Massachusetts the worst men get into the Legislature. Several members of that body had lately been convicted of infamous crimes. Men of indigence, ignorance, and baseness, spare no pains, however dirty, to carry their point against men who are superior to the artifices practised. He was not disposed to run into extremes. He was as much principled as ever against aristocracy and monarchy. It was necessary, on the one hand, that the people should appoint one branch of the government, in order to inspire them with the necessary confidence; but he wished the election, on the other, to be so modified as to secure more effectually a just preference of merit. His idea was, that the people should nominate certain persons, in certain districts, out of whom the State Legislatures should make the appointment.
Mr. Wilson. He wished for vigor in the government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The government ought to possess, not only, first, the force, but second, the mind or sense, of the people at large. The Legislature ought to be the most exact transcript of the whole society. Repre