As the Convention continues its point by point consideration of the report of the Committee of Detail, it is apparent that deep divisions have not yet been overcome: small States still fear domination by large States, slavery has not been faced head on, and disagreement reigns over just how much “the people” can be trusted. Votes on the more contentious issues are nearly always close, eluding consensus. However, many provisions of the proposed constitution are voted nem. con., or nemine contradicente, Latin for “no one contradicting.” Progress is slow, but it is progress.
This morning, Charles Pinckney offered an unexpected motion that “members of the legislature, the executive, and the judges should be possessed of competent property to make them independent and respectable.” The Committee had left such property requirements, if any, to be determined by the legislature, but Pinckney prefers that the Convention make that decision by requiring all federal officials to “swear that they respectively possess a clear unencumbered estate to the amount of ------ in the case of the presidents, etc., etc.” While his motion left the amount blank, Pinckney suggested “the quantum of property” for the president should be no less than $100,000, half that for judges, and “in like proportion “ for members of the national legislature.
John Rutledge, Chairman of the Committee of Detail, said the Committee had reported no qualifications because they could not agree among themselves. Oliver Ellsworth, also a Committee member, explained why. “The different circumstances of different parts of the U.S. and probable differences in the future” render it improper to have uniform or fixed qualifications. Normally quiescent, Benjamin Franklin was agitated by the motion and “expressed his dislike of everything that tended to debase the spirit of the common people.” Suspicious of the virtue of wealth, he observed that “some of the greatest rogues he was ever acquainted with were the richest rogues. We should remember the character which the Scripture requires in rulers, that they should be men hating covetousness. This constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich – will not only hurt us in the esteem of the most liberal and enlightened men there, but will discourage the common people from removing to this country.”
Pinckney’s motion “was rejected by so general a no that the States were not called,” but the issue of qualifications for elected officials was still on the table. If there are to be such qualifications, James Madison argued, they should be in the constitution, not set by the legislature which could, “by degrees, subvert the constitution.” Following a brief debate, the Convention voted 3 – 7 against approving Article VI, Sect. 2, the provision authorizing the legislature to “establish uniform qualifications of the members of each House with regard to property.”
In response to a commitment made during yesterday’s session, James Wilson rose to “restore 3 in place of 7 years of citizenship as a qualification” for being elected to the House of Representatives. Without discussion, the motion passed 6 – 5.
Article VI, Sect. 3 sparked a vigorous debate over what would normally be considered a routine, procedural detail – the quorum. The report recommends a majority for each House of the legislature. Nathanial Gorham instantly argued for a smaller number, “otherwise great delay might happen.” John Mercer agreed but went further. “Leave it to the legislature to fix the quorum,” he said. George Mason contradicted him. If the power to determine a quorum were left to the legislature, he argued, “it might reduce it so low as it pleased and the United States might be governed by a Junto.” Some members might choose to be deliberately absent for a variety of political purposes. The issues of a quorum and attendance are linked, leading Ellsworth to suggest that each House have the “authority to require the attendance of absent members.” Randolph formalized Ellsworth’s recommendation into a motion which passed - with the exception of Pennsylvania, which was divided.
Sects. 4, 5, and 6 of Article VI were easily approved with virtually no discussion or debate, authorizing each House to judge of the elections, returns and qualifications of its own members; assuring freedom of speech in the legislature; exempting legislators from arrest (except for treason, felony, and breach of the peace) during their attendance at Congress; and authorizing each House to determine its own rules, punish members for disorderly behavior, and expel members.
A seemingly innocuous provision in Section 7 ignited another brief, but prickly debate. In addition to requiring each House to keep a Journal of its proceedings and publish them “from time to time,” Sect. 7 provides “the yeas and nays of the members of each House, on any question, shall at the desire of one-fifth part of the members present, be entered on the Journal.” Gouverneur Morris thought it might “disadvantage the small States” because they may “find it difficult to get a concurrence of one-fifth.” That argument made little sense but reflects the lingering suspicion small States have of larger ones. Roger Sherman would “rather strike out the yeas and nays altogether – they have never done any good and have done much mischief.” How they had “done much mischief” he did not say; nor did he say how eliminating the voting record of representatives is consistent with transparent, responsible government.
Nathaniel Gorham supported Sherman, citing abuses in his own State of Massachusetts. There, he said, abuses included “stuffing the journals with [the yeas and nays] on frivolous occasions and misleading the people who never know the reasons for determining the votes.” The debate was inconclusive, the hour late, and the weather miserably hot. The Convention adjourned until tomorrow when the debate on the “yeas and nays” will be resumed.