Madison’s Notes: The Federal Convention of 1787: August 14

Liberty Letters, 14 August 1787, James Madison

____________________

Editor’s Summary: The debate for 14 August 1787 focused on two issues. 1. Should members of the House be eligible under the Constitution to accept civil service offices during or shortly thereafter serving in the House?  And why or why isn’t this a danger? 2. Who should pay the salaries of the United States Senate and the House, the national government or the respective state governments? And why? Excellent discussion with strong arguments on both sides of both issues ensued. Steve Farrell

______________________

Article VI. Sect. 9. (1), (2) taken up.

Mr. PINKNEY argued that the making the members ineligible to offices was degrading to them, and the more improper as their election into the Legislature implied that they had the confidence of the people; that it was inconvenient, because the Senate might be supposed to contain the fittest men. He hoped to see that body become a School of public Ministers, a nursery of Statesmen: that it was impolitic, because the Legislature would cease to be a magnet to the first talents and abilities. He moved to postpone the section in order to take up the following proposition viz — “the members of each House shall be incapable of holding any office under the U.S. for which they or any (3) others for their benefit receive any salary, fees, or emoluments of any kind — and the acceptance of such office shall vacate their seats respectively”

Genl. MIFFLIN 2ded. the motion.

Col. MASON ironically proposed to strike out the whole section, as a more effectual expedient for encouraging that exotic corruption which might not otherwise thrive so well in the American Soil — for completing that Aristocracy which was probably in the contemplation of some among us, and for inviting into the Legislative Service, those generous and benevolent characters who will do justice to each other’s merit, by carving out offices and rewards for it. In the present state of American morals and manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary and depraved ambition.

Mr. MERCER. It is a first principle in political science, that wherever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can and will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied and complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability and uncertainty to their other evils. — Governments can only be maintained by force or influence. The Executive has not force, deprive him of influence (4) by rendering the members of the Legislature ineligible to Executive offices, and he becomes a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder. The Legislature must and will be composed of wealth and abilities, and the people will be governed by a Junto. The Executive ought to have a Council, being members of both Houses. Without such an influence, the war will be between the aristocracy and the people. He wished it to be between the Aristocracy and the Executive. Nothing else can protect the people against. those speculating Legislatures which are now plundering them throughout the United States.

Mr. GERRY read a resolution of the Legislature of Massachusetts passed before the Act of Congress recommending the Convention, in which her deputies were instructed not to depart from the rotation established in the 5th. art: of (5) Confederation, nor to agree in any case to give to the members of Congress a capacity to hold offices under the Government. This he said was repealed in consequence of the Act of Congress with which the State thought it proper to comply in an unqualified manner. The Sense of the State however was still the same. He could not think with Mr. Pinkney that the disqualification was degrading. Confidence is the road to tyranny. As to Ministers and Ambassadors few of them were necessary. It is the opinion of a great many that they ought to be discontinued, on our part; that none may be sent among us, and that source of influence be (6) shut up. If the Senate were to appoint Ambassadors as seemed to be intended, they will multiply embassies for their own sakes. He was not so fond of those productions as to wish to establish nurseries for them. If they are once appointed, the House of Representatives will be obliged to provide salaries for them, whether they approve of the measures or not. If men will not serve in the Legislature without a prospect of such offices, our situation is deplorable indeed. If our best Citizens are actuated by such mercenary views, we had better choose a single despot at once. It will be more easy to satisfy the rapacity of one than of many. According to the idea of one Gentlemen [Mr. Mercer] our Government it seems is to be a Government of plunder. In that case it certainly would be prudent to have but one rather than many to be employed in it. We cannot be too circumspect in the formation of this System. It will be examined on all sides and with a very suspicious eye. The People who have been so lately in arms against Great Britain for their liberties, will not easily give them up. He lamented the evils existing at present under our Governments, but imputed them to the faults of those in office, not to the people. The misdeeds of the former will produce a critical attention to the opportunities afforded by the new system to like or greater abuses. As it now stands it is as complete an aristocracy as ever was framed. If great powers should be given to the Senate we shall be governed in reality by a Junto as has been apprehended. He remarked that it would be very differently constituted from Congress — (1. 7) there will be but two deputies from each State, in Congress there may be (7). and are generally five — (2. 8) they are chosen for six years, those of Congress annually. (3. 9) They are not subject to recall; those of Congress are. (4.9) In Congress States (10) are necessary for all great purposes — here eight persons will suffice. Is it to be presumed that the people will ever agree to such a system? He moved to render the members of the House of Representatives as well as of the Senate ineligible not only during, but for one year after the expiration of their terms. — If it should be thought that this will injure the Legislature by keeping out of it men of abilities who are willing to serve in other offices it may be required as a qualification for other offices, that the Candidate shall have served a certain time in the Legislature.

Mr. GOVr. MORRIS. Exclude the officers of the army and navy, and you form a band having a different interest from and opposed to the civil power: you stimulate them to despise and reproach those “talking Lords who dare not face the foe.” Let this spirit be roused at the end of a war, before your troops shall have laid down their arms, and though the Civil authority “be entrenched in parchment to the teeth” they will cut their way to it. He was against rendering the members of the Legislature ineligible to offices. He was for rendering them eligible again after having vacated their Seats by accepting office. Why should we not avail ourselves of their services if the people choose to give them their confidence. There can be little danger of corruption either among the people or the Legislatures who are to be the Electors. If they say, we see their merits, we honor the men, we choose to renew our confidence in them, have they not a right to give them a preference; and can they be properly abridged of it. Mr. WILLIAMSON; introduced his opposition to the motion by referring to the question concerning “money bills.” That clause he said was dead. Its ghost he was afraid would notwithstanding haunt us. It had been a matter of conscience with him, to insist upon (11) it as long as there was hope of retaining it. He had swallowed the vote of rejection, with reluctance. He could not digest it. All that was said on the other side was that the restriction was not convenient. We have now got a House of Lords which is to originate money-bills. — To avoid another inconveniency, (12) we are to have a whole Legislature at liberty to cut out offices for one another. He thought a self-denying ordinance for ourselves would be more proper. Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills he did not wish to make it worse by expunging the present Section. He had scarcely seen a single corrupt measure in the Legislature of North Carolina, which could not be traced up to office hunting.

Mr. SHERMAN. The Constitution should lay as few temptations as possible in the way of those in power. Men of abilities will increase as the Country grows more populous and, and (13) the means of education are more diffused.

Mr. PINKNEY. No State has rendered the members of the Legislature ineligible to offices. In South Carolina the Judges are eligible into the Legislature. It can not be supposed then that the motion will be offensive to the people. If the State Constitutions should be revised he believed restrictions of this sort would be rather diminished than multiplied.

Mr. WILSON could not approve of the Section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting and responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Pennsylvania had not good sense enough to receive a good Government? Under this impression he should certainly follow his own Judgment which disapproved of the section. He would remark in addition to the objections urged against it, that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States, as both are to be paid by the States, and to be appointable to State offices, nothing seemed to be wanting to prostrate the National Legislature, but to render its members ineligible to National offices, and by that means take away its power of attracting those talents which were necessary to give weight to the Government and to render it useful to the people. He was far from thinking the ambition which aspired to Offices of dignity and trust, an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards, which might engage it in the career of public service. He observed that the State of Pennsylvania which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of Government.

Mr. ELLSWORTH did not think the mere postponement of the reward would be any material discouragement of merit. Ambitious minds will serve two years or seven years in the Legislature for the sake of qualifying themselves for other offices. This he thought a sufficient security for obtaining the services of the ablest men in the Legislature, although whilst members they should be ineligible to Public offices. Besides, merit will be most encouraged, when most impartially rewarded. If rewards are to circulate only within the Legislature, merit out of it will be discouraged.

Mr. MERCER was extremely anxious on this point. What led to the appointment of this Convention? The corruption and mutability of the Legislative Councils of the States. If the plan does not remedy these, it will not recommend itself; and we shall not be able in our private capacities to support and enforce it: nor will the best part of our Citizens exert themselves for the purpose. — It is a great mistake to suppose that the paper we are to propose will govern the United States? It is The men whom it will bring into the Government and interest in maintaining it that is (14) to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business. All Government must be by force or influence. It is not the King of France — but 200,000 janisaries of power that govern that Kingdom. There will be no such force here; influence then must be substituted; and he would ask whether this could be done, if the members of the Legislature should be ineligible to offices of State; whether such a disqualification would not determine all the most influential men to stay at home, and prefer appointments within their respective States.

Mr. WILSON was by no means satisfied with the answer given by Mr. Ellsworth to the argument as to the discouragement of merit. The members must either go a second time into the Legislature, and disqualify themselves — or say to their Constituents, we served you before only from the mercenary view of qualifying ourselves for offices, and having answered this purpose we do not choose to be again elected.

Mr. GOVr. MORRIS put the case of a war, and the Citizen the (15) most capable of conducting it, happening to be a member of the Legislature. What might have been the consequence of such a regulation at the commencement, or even in the Course of the late contest for our liberties?

On (16) question for postponing in order to take up Mr. Pinkneys motion, it was lost.

N. H. ay. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. divd. (17)

Mr. GOVr. MORRIS moved to insert, after “office,” except offices in the army or navy: but in that case their offices shall be vacated.

Mr. BROOM seconds him.

Mr. RANDOLPH had been and should continue uniformly opposed to the striking out of the clause; as opening a door for influence and corruption. No arguments had made any impression on him, but those which related to the case of war, and a co-existing incapacity of the fittest commanders to be employed. He admitted great weight in these, and would agree to the exception proposed by Mr. Govr. Morris.

Mr. BUTLER & Mr. PINKNEY urged a general postponement of Section 9, Art. VI. till it should be seen what powers would be vested in the Senate, when it would be more easy to judge of the expediency of allowing the officers of State to be chosen out of that body. — a general postponement was agreed to nem. con.

Art: VI. sect. 10. (18), (19) taken up — “that members be paid by their respective States.”

Mr. ELSEWORTH said that in reflecting on this subject he had been satisfied that too much dependence on the States would be produced by this mode of payment. He moved to strike (20) out and insert “that they should” be paid out of the Treasury of the U.S. an allowance not exceeding (blank) dollars per day or the present value thereof.

Mr. GOVr. MORRIS, remarked that if the members were to be paid by the States it would throw an unequal burden on the distant States, which would be unjust as the Legislature was to be a national Assembly. He moved that the payment be out of the National Treasury; leaving the quantum to the discretion of the National Legislature. There could be no reason to fear that they would overpay themselves.

Mr. BUTLER contended for payment by the States; particularly in the case of the Senate, who will be so long out of their respective States, that they will lose sight of their Constituents unless dependent on them for their support.

Mr. LANGDON was against payment by the States. There would be some difficulty in fixing the sum; but it would be unjust to oblige the distant States to bear the expense of their members in traveling to and from the Seat of Government.

Mr. MADISON. If the House of Representatives is to be chosen biennially — and the Senate to be constantly dependent on the Legislatures which are chosen annually, he could not see any chance for that stability in the General Government, the want of which was a principal evil in the State Governments. His fear was that the organization of the Government supposing the Senate to be really independent for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the State Governments which separately had been found insufficient. The Senate was formed on the model of that of Maryland. The Revisionary check, on that of New York. What the effect of a union of these provisions might be, could not be foreseen. The enlargement of the sphere of the Government was indeed a circumstance which he thought would be favorable as he had on several occasions undertaken to shew. He was however for fixing at least two extremes not to be exceeded by the National Legislature in the payment of themselves.

Mr. GERRY. There are difficulties on both sides. The observation of Mr. Butler has weight in it. On the other side, the State Legislatures may turn out the Senators by reducing their salaries. Such things have been practiced.

Col. MASON. It has not yet been noticed that the clause as it now stands makes the House of Representatives also dependent on the State Legislatures; so that both houses will be made the instruments of the politics of the States whatever they may be.

Mr. BROOM could see no danger in trusting the General Legislature with the payment of themselves. The State Legislatures had this power, and no complaint had been made of it.

Mr. SHERMAN was not afraid that the Legislature would make their own wages too high; but too low, so that men ever so fit could not serve unless they were at the same time rich. He thought the best plan would be to fix a moderate allowance to be paid out of the National Treasury and let the States make such additions as they might judge fit. He moved that five dollars per day be the sum, any further emoluments to be added by the States.

Mr. CARROL had been much surprised at seeing this clause in the Report. The dependence of both Houses on the State Legislatures is complete; especially as the members of the former are eligible to State offices. The States can now say: if you do not comply with our wishes, we will starve you: if you do we will reward you. The new Government in this form was nothing more than a second edition of Congress in two volumes, instead of one, and perhaps with very few amendments —

Mr. DICKENSON took it for granted that all were convinced of the necessity of making the General Government independent of the prejudices, passions, and improper views of the State Legislatures. The contrary of This was effected by the section as it stands. On the other hand there were objections against taking a permanent standard as wheat which had been suggested on a former occasion, as well as against leaving the matter to the pleasure of the National Legislature. He proposed that an Act should be passed every twelve years by the Natl. Legislature settling the quantum of their wages. If the General Government should be left dependent on the State Legislatures, it would be happy for us if we had never met in this Room.

Mr. ELSEWORTH was not unwilling himself to trust the Legislature with authority to regulate their own wages, but well knew that an unlimited discretion for that purpose would produce strong, though perhaps not insuperable objections. He thought changes in the value of money, provided for by his motion in the words, “or the present value thereof.”

Mr. L. MARTIN. As the Senate is to represent the States, the members of it ought to be paid by the States.

Mr. CARROL. The Senate was to represent and manage the affairs of the whole, and not to be the advocates of State interests. They ought then not to be dependent on nor paid by the States.

On the question for paying the Members of the Legislature out of the Natl. Treasury,

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. 21

Mr. ELLSWORTH moved that the pay be fixed at five dollars or the present value thereof per day during their attendance and for every thirty miles in traveling to and from Congress.

Mr. STRONG preferred four dollars, leaving the States at liberty to make additions.

On 22 question for fixing the pay at five dollars.

N. H. no. Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. 23

Mr. DICKENSON proposed that the wages of the members of both houses be required to be the same.

Mr. BROOME seconded him.

Mr. GHORUM. this would be unreasonable. The Senate will be detained longer from home, will be obliged to remove their families, and in time of war perhaps to sit constantly. Their allowance should certainly be higher. The members of the Senates in the States are allowed more, than those of the other house. Mr. DICKENSON withdrew his motion

It was moved & agreed to amend the Section by adding — “to be ascertained by law.”

The Section [Art VI. Sec. 10] as amended, agreed to nem. con.

Adjd.

______________________________

1. See ante.

2. The word “was” is here inserted in the transcript.

3. The word “of” is omitted in the trancript.

4. The transcript italicizes the word “influence.”

5. The word “the” is here inserted in the transcript.

6. The word “be” is omitted in the transcript.

7. The figure “1” is changed to “In the first place” in the transcript.

8. The figure “2” is changed to “In the second place” in the transcript.

9. The figure “3” is changed to “In the third place” in the transcript.

10. The phrase “And finally, in Congress nine States” is substituted in the transcript for “4. In Congs. 9 States.”

11. The word “on” is substituted in the transcript for “upon.”

12. The word “inconveniency” is changed to ” nconvenience” in the transcript.

13. The word “as” is substituted in the transcript for “and.”

14. The word “are” is substituted in the transcript for “is.”

15. The word “the” is omitted in the transcript.

16. The word “the” is here inserted in the transcript.

17. In the transcript the vote reads: “New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, aye — 5; Massachusetts, Connecticut, New Jersey, North Carolina, South Carolina, no — 5; Georgia, divided.”

18. See ante.

19. The words “was then” are here inserted in the transcript.

20. The word “it” is here inserted in the transcript.

21. In the transcript the vote reads: “New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye — 9; Massachusetts, South Carolina, no — 2.”

22. The word “the” is here inserted in the transcript.

23. In the transcript the vote reads: “Connecticut, Virginia, aye — 2; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, no — 9.”

______________________________

Editor’s note: I’ve updated spelling and eliminated most of Madison’s shorthand (in the speeches, not elsewhere).

This version of “Madison’s Notes” Copyright © 2010 Steve Farrell and The Moral Liberal