332 QUESTION OF RATIFICATION. judges should hold office during good behavior and be paid a fixed compensation; that new States should be admitted,2 and that Congress should continue until the new government was inaugurated. But as the resolution for guaranteeing republican government and the territory of the States involved the question of representation, at Patterson's request, it was postponed. Pinckney doubted the propriety or necessity of providing for amendments without the assent of the national legislature. Gerry believed that the novelty and the difficulties of the experiment about to be made would require its periodical revision; but the proposition, with that of requiring an oath from State officers to support the national government, was also postponed. How should the Constitution be ratified? By the State legislatures, urged Sherman, following the precedent of the Articles. In this respect Madison pronounced them defective, as resting for their sanction only on the assemblies; a popular ratification was essential. As far as the Articles were a treaty between the States, the doctrine might be set up that a breach of one by any of the parties would dissolve the others from the whole obligation; it was therefore indispensable that the new Constitution. should be ratified in the most unexceptionable form,— that is, by the supreme authority of the people themselves. Thus he stood with Wilson in advocating a national government, ordained and established by the people of the United States. Gerry, still distrustful of the people, remarked, that in the eastern States the Confederacy had 1 The ninth resolution. 2 The tenth resolution. 3 The twelfth resolution. 4 The thirteenth resolution. 5 The fourteenth resolution. QUESTION OF RATIFICATION. 333 received popular sanction, but he was afraid to refer a new system to them because at this time they had the wildest ideas of government. Shays and his sympathizers were for abolishing the Senate, and giving nearly all the powers of government to the lower House. King cited. the last article of the Confederation, which made the legislatures competent to ratify. This they had done in the South, and the consent of the people had soon been given by implication. Ratification by conventions was preferable, because it could be carried through a single house more easily than through a legislature, which would be likely to raise objections as it was to lose power. The selfish opposition of a few States, said Wilson, doubtless with reference to New Jersey and Delaware, should not be permitted to prevent the others from confederating anew on better principles, and the mode of ratification should leave an open door for the accession of the rest. Pinckney suggested that in case the Union was not agreed to by all, it might go into effect with the consent of nine States. The manner of ratification involved the deeper question of State sovereignty, and as the discussion already had disclosed elements of discord, the matter was postponed. Rutledge, bringing up the subject of inferior tribunals again, wished the provision for them expunged, taking Randolph's view that the State courts were sufficient. The creation of these tribunals, he said, would be an unnecessary encroachment on State jurisdiction and would create unnecessary obstacles to the adoption of the new system. Sherman agreed with him, but Madison, detecting the evils in the idea, remarked that unless inferior tribunals were dispersed throughout the republic, with 1 Adopted in the Constitution, Article VII. final jurisdiction, in many cases appeals would be multiplied to an oppressive degree, and moreover, in many cases, an appeal would not be a remedy. If an improper verdict was obtained in the State court, owing to the biased directions of a dependent judge, or the local prejudice of an undirected jury, no relief would be offered by remanding the case for a new trial, which would only oblige the parties to bring forward all their witnesses, though far distant from the seat of the court.1 It was essential to the new government to establish a judiciary commensurate in authority with the legislature, and he compared a government without a proper executive and judiciary to the trunk of a body without arms or legs. Wilson, though holding larger national views than Madison, supported him. As admiralty jurisdiction related to cases not under the jurisdiction of particular States, and to controversies with foreigners, it ought to be given wholly to the national government. Sherman objected to the proposed inferior tribunals on account of the expense. Dickinson, true to his philosophy of government founded on the definition and separation of its powers emphasized by Montesquieu, strongly contended that if there was to be a national legislature, there ought also to be a national judiciary which the legislature should have the authority to institute; but the ideas of Rutledge and Sherman prevailed. Dickinson's suggestion led Wilson and Madison then to propose that the national legislature should be em 1 Hamilton discusses the relative merits of a defective national judiciary and a federal judiciary dependent upon the States, in the Federalist, No. XLXXXI. 2 Embodied in the Constitution, Article III, Section 1. 3 The motion to strike out the provision for inferior tribunals was carried by Connecticut, New York, New Jersey, North Carolina, South Carolina and Georgia, aye; Pennsylvania, Delaware, Maryland and Virginia, no. Massachusetts, divided. THE LOWER HOUSE. 335 powered to institute inferior tribunals. There was a distinction, they said, between establishing such tribunals absolutely, and giving the legislature the power to establish them at its discretion. Butler at once characterized this as an innovation which the people would not bear, and an encroachment against which the States would revolt. Even if such an establishment was useful, the Convention should not venture on it, but should follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive. Sherman's objection on the ground of expense led King to say that the tribunals would cost infinitely less than the appeals they would prevent. At this, Wilson's and Madison's proposition was agreed to.1 Pinckney now moved that the first branch of the national legislature should be chosen by the assemblies and not by the people.2 If excluded from all share in the new government, the legislatures would be less likely to promote its adoption, and, moreover, the people were invited to make the choice. Rutledge agreed with him. The people of England, said Gerry, who attributed much importance to the mode of election, would probably lose their liberty ultimately from the small number of voters among them, but America was in peril from too many voters. The worst men got into the Massachusetts legislature, yet the people ought to appoint one branch of the new government in order to inspire them with the necessary confidence in it; and he again proposed nomi 1 Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina and Georgia, aye; Connecticut and South Carolina, no. New York, divided. In Elliot's reprint of the Journal, p. 163, New Jersey is recorded as voting no. 2 June 6. Less than 150,000 at this time. See my Constitutional History of the American People, 1776-1850, Vol. I, 93-99. 336 SEPARATION OF POWERS. nation by the people in districts and election by the assemblies. The discussion followed the old lines. Wilson urged an election by the people, with which Sherman agreed, if by this mode it was intended to abolish the State governments; but, if they were to be continued, harmony between the two governments would be preserved by an election by the assemblies. The choice of members of the State legislatures would allow the people a sufficient participation in the national government. It should be remembered, he said, that its objects were few; the common defense, domestic tranquillity, the maintenance of treaties, and the regulation of commerce and revenue. Except for these a confederation of the States was unnecessary. All other matters would be much better left in the hands of the States. The legislative and executive powers of the general government should therefore be carefully limited and defined. At this, Mason, whose later conduct did not harmonize with his present speech, distinguished between a confederacy and a national government. Under the existing Confederacy, Congress represented the States, not the people of the States, and its acts operated on the States, not on individuals. The new plan of government would change this. The people would be represented and, therefore, they ought to choose their representatives. He agreed with Wilson that there was a better chance for proper elections by the people, if divided into districts, than by the assemblies, as was proved by the enormous issues of paper money made by the legislature, though opposed by large districts of people. The evils of fiat money had deeply impressed Mason, and he asked a question to which every member knew the answer. Would not the assemblies be more likely to send the advocates of paper money to the national legislature, if the choice depended on them, |