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to consist of the men most distinguished in rank and property, so that it should bear as strong a likeness as possible to the British House of Lords; and such men were more likely to be elected by the State legislatures than by the people. And he favoured a large number; this he said in evident anticipation of the suggestion that proportional representation, already adopted for the first branch, would make the Senate too large. If the motion prevailed, it would therefore help the smaller States, as it actually did, in the struggle for equality in the Senate. The motion was supported by Sherman, who argued that the States would thus become interested in supporting the national government, and that due harmony would be maintained.

Madison said that if the motion prevailed they would have to depart from proportional representation or admit into the Senate a very large number of members. The first was unjust, the second inexpedient. Enlarge the number of senators, and the vices which they wished to correct would increase. The weight of the Senate would be in inverse ratio to its numbers. The Roman tribunes lost influence and power as their number was increased; they fell a prey to their aristocratic foes. So the more the representatives of the people were multiplied, the more they would have of the infirmities of the people. When the weight of a set of men depended only on personal character, the greater their number the greater their weight; when it depended on the degree of political authority lodged in them, the smaller their number the greater their weight.

Gerry observed that four methods of appointing the Senate had been mentioned, to wit: first, by the first branch of the national legislature. That would create dependence, and hence defeat the end proposed. Secondly, by the national executive. That would be a stride towards monarchy. Thirdly, by the people. The people composed two great interests, the landed and the commercial; to draw both branches from the people would leave no security to the commercial interest, that of the people being chiefly agricultural. Fourthly, by the State legislatures. The elections being carried through this refinement, there would be apt to result some check in favour of the commercial interest against the landed. He favoured this last method.

Dickinson argued the question with reference to the possibility that the smaller States would lose ground unless election to the Senate should be fixed in the State legislatures. That method fixed, the smallest as well as the largest State must have representation in the Senate, and have it by the State in its corporate capacity; while otherwise, if proportional representation should be adopted for the Senate, it might be necessary to join the smallest States, Delaware and Rhode Island, to others in order to make up for their lack of population. It was indispensable to secure a certain degree of influence for the States; this would establish a desirable check between the authorities. The proposed national system

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was like the solar system, in which the States were the planets and ought therefore to be left to move freely in their own orbits. Wilson, he said, wished to extinguish the planets. But if the State governments were excluded from all agency in the national system, and all power drawn from the people at large, the result would be that the national government would move in the same direction as that in which the States now moved, and would run into the same mischiefs. He adhered to the opinion that the Senate ought to be composed of a large number, and that the influence of the body, from family and other causes, would be increased thereby. He did not admit that the Roman tribunes lost weight as their number was increased.

Wilson agreed that the question was a difficult one; but they must settle it. He denied that the British Constitution could be a model for

them; there were no materials for anything like it. He did not see the danger of the States being devoured by the national government; the danger was the converse. But he was not for putting out the planets; nor did he believe that they would warm or give light to the sun. They must be suffered within their proper orbits, for subordinate purposes, for which they were made essential by the great extent of the country. He was for election by the people, in large districts, regardless of the size of the States.

Madison could not understand how family weight would be carried into the Senate more certainly on Dickinson's plan than in other ways. The great question was, how to make the best choice. If other modes would give the Senate as good men, there could be no need of appointment by the State legislatures; nor was it apparent that Dickinson's plan would afford a better check than other plans. The legislatures ran into bad schemes of paper money and the like whenever the people asked for them, and sometimes when they did not.

Gerry re-asserted that the commercial interest would be more secure in the hands of the State legislatures than in the hands of the people. The former had more sense of character; in Massachusetts the county conventions had declared for a depreciation of paper that would sink the project. Besides, there were two branches of the State legislatures, one of which was somewhat aristocratic; there would therefore be, so far, a better chance of refinement. He objected to election by districts for several reasons; one had already been referred to, that a small State would form but part of the same district with a large one, and hence would have no chance of gaining an appointment for its own citizens.

Dickinson's motion prevailed (June 7), all the States present voting for it. The question came before the House in Convention on June 25; where, on the same day, the vote in committee was affirmed. nine States aye, two States, Pennsylvania and Virginia, nay. The decision went accordingly to the committee of detail, and thence into

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Sixth resolution.

Enumeration of powers

[1787

the draft Constitution of August 6, and without further discussion into the Constitution. There it appears in the first part of Article I, section 3.

(6) POWERS OF CONGRESS

The sixth of the Randolph resolutions, as originally laid before the Convention, declared that each branch of the national legislature ought to have the right to originate Acts; that the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation, and moreover to legislate in all cases for which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual (i.e. State) legislation; to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union or any treaty subsisting under authority of the Union; and to call forth the force of the Union against any member of the same failing to fulfil its duty under the said articles. This came up in committee on May 31.

The whole resolution, excepting the last clause, was speedily adopted, the only debate arising upon the word "incompetent" in the second clause. The word was thought by some to be too vague; the powers of the States were left in doubt by it. The real question was, whether or not there should be an enumeration of the powers of the general government. Madison had come to the Convention with a strong feeling in favour of enumeration and definition; but he had also brought doubts whether the idea was practicable. His wishes remained unchanged; but his doubts had grown stronger; what he might think later he knew not. He would not shrink from anything which might be found necessary to a form of government which would provide for the safety, liberty, and happiness of the country. All means necessary to that end must be granted, however reluctantly.

In regard to the last clause, providing for the coercion of States, Madison looked upon the proposal with disfavour. A union of States containing such an ingredient would provide for its own destruction. To use force against a State would look more like a declaration of war against it than like punishment for disobedience, and would be apt to be taken as a dissolution of the bond by which it was bound to the Union.

The clause was postponed and finally dropped; the rest of the Randolph resolution was reported to the Convention.

The question in regard to the word "incompetent" was now renewed; indeed the whole clause containing the word was objected to for vagueness. Accordingly, as a substitute for it, down to the words “individual legislation" inclusive, Sherman moved the following: “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union, but not to interfere with the

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government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned." In explanation the mover read an enumeration of powers which he conceived to fall within the meaning of the provision, this enumeration not including direct taxation a fact which was noticed and commented upon. The motion failed, two States only voting for it.

The following provision was now substituted by the House for the remainder of the clause after the words "to enjoy the legislative rights vested in Congress by the Confederation"-which words themselves were not disturbed: "and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." And then, with this amendment, the whole clause was adopted, two States, South Carolina and Georgia, voting in the negative.

The clause giving to the legislature power to negative State legislation was now taken up, and disposed of on the same day. Sherman thought it an unnecessary power; the Courts of the States, he said, would not uphold laws which contravened the authority of the Union. Martin, also opposing the idea, inquired whether all the laws of the States were to be sent up to the general government before they could take effect.

Madison, on the other hand, argued that the negative in question was essential to the efficacy and security of the general government. The necessity of a general government arose from the propensity of the States to pursue their particular interests, in opposition to the general interest. That propensity would continue to disturb the system unless effectually controlled; nor would anything short of a negative control it. The States would pass laws to accomplish their harmful purposes before they could be repealed by the national legislature or set aside by the national tribunals. Alluding, it seems, to the remark of Sherman concerning State Courts, he said that confidence could not be put in the State tribunals as guardians of the national authority. In Georgia the judges were appointed annually; in Rhode Island judges who had refused to enforce an unconstitutional statute were removed and others put in their place by the legislature, who would obey their masters. The power to negative bad laws was the mildest and also the most certain means of preserving the harmony of the system. He referred to the British system; nothing could maintain the harmony and subordination of the various parts of the empire but the prerogative by which in every part the Crown stifled in the birth every Act tending towards discord. or encroachment. The prerogative had, it was true, been misapplied sometimes, through ignorance or partiality; but there was not the same reason for fear in the present case. As for sending all laws up to

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Taxation of exports

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the national legislature, that might be made unnecessary by some "emanation of power into the States" (sending persons into the States accredited with power) to give temporary effect to urgent legislation.

Gouverneur Morris said that the proposal would disgust all the States. The true way was to leave the improper law to be set aside by the judiciary, failing which the national legislature might repeal it.

The question being put, the proposal was rejected; three States only, Massachusetts, Virginia, and North Carolina, voting for it. The result was to leave the portion immediately preceding, as the basis of an enumeration of powers. The subject now went to the committee of detail, by which an article enumerating the powers of the national legislature was prepared and reported in the draft Constitution of August 6. The Convention proceeded to consider the article on August 16, and two days later completed the enumerating portion of it, with the exception of a clause giving power to the legislature to call out the State militia, which caused some trouble. Most of the other proposed powers were adopted with little difficulty.

By the first clause in the proposed article, power was given to the legislature to levy taxes, duties, imposts, and excises. Objection was made by members from the southern, or exporting, States that, under this power, the legislature might lay a tax on exports. Mason desired to have the clause modified, so as to render it clear that such taxation was not permitted, and he made a motion to that end. He hoped that the northern States would not deny to the southern this security; it would be as desirable to the North in the future, when the South became the most populous part of the country. Gouverneur Morris was opposed to the motion; in some cases it might not be equitable to tax imports without taxing exports also, and taxes on exports would often be the easiest to collect, and the most proper.

Madison opposed the motion for several reasons. First, he considered that the power of laying taxes on exports was proper, and as the States could not well exercise it, this power should be vested in the general government. Secondly, the power might be used with special advantage in regard to articles in which America had no rival in foreign markets, as in tobacco. Thirdly, it would be unjust to the States whose produce was exported by their neighbours to leave it to be taxed by them. A like grievance in respect of imports had already filled the non-commercial States with loud complaints. Fourthly, as the southern States were in most danger from abroad, and in most need of naval protection, they could not complain if the burden fell somewhat heavier upon them.

Mercer supported the motion. The States had now a right to tax both the imports and the exports of their non-commercial neighbours; it would be enough for them to sacrifice half the power. Nor would he admit that the southern States had most need of naval protection. The contrary was true; were it not for promoting the carrying trade of the