Rufus King and Nathaniel Gorham Response to Elbridge Gerry's Objections

Written after 31 October 1787

Note:  From the Rufus King, in the New Hampshire Historical Society, and reprinted in The Documentary History of the Ratification of the Constitution,  XIII, 550-554.  This undated document, in King's handwriting, was probably prepared by Constitutional Convention delegates King and Gorham in response to fellow delegate Elbridge Gerry's letter of 18 October to the Massachusetts General Court giving his objections to the Constitution and explaining why he had not signed it. Gerry's letter was read in the state Senate on 31 October, and this document was probably drafted on or after that date.  The King‑Gorham point‑by‑point response was not published at the time, even though Federalists had encouraged them to answer Gerry. In the late nineteenth century it was printed in Charles King’s biography of Rufus King (See Volume 1, p. 303-308), where it was identified as "notes of a speech in the Convention of Massachusetts." Charles R. King believed that Rufus King drafted this document in answer to Gerry who had been asked to attend the Massachusetts Conven­tion to answer any questions of fact on the adoption of the Constitution. Max Farrand (who printed an excerpt) later concluded that, if the speech was given in the Massachu­setts Convention, it was probably delivered on 24 January 1788. "But," continued Farrand, "the various points that are taken up are those made by Gerry in his `Objections' to the Constitution" (Farrand, III, 268, 268n).

            Below words abbreviated in the original have been typed out in full whenever there is any chance of misinterpretation, and materials crossed out in the originals are in brackets in bold type.  Spelling has been left as in the original.

The unpublished King & Gorham Response:

            The provision in the report of the Convention authorises one Rep. for every 30,000 Inhabitants [taken comfortably to the Census] ascertained as is there proposed‑from the best materials that have been collected the united States at this Time contain 3 million. of Inhabitants comprehending all the Free Inhabitants & 3/5 only of the Slaves‑this number wd. give 100 Representatives -‑ it is true that the first house will consist of only 65 Members, but the Congress must cause the Numbers of Inhabitants to be taken within 3 yrs, and may do it within one -‑ If the present Numbers will give 100 Representatives and the Opinion is well founded which we take to be the Case, that the people of America double in 25 yrs, then in 25 yrs. the Number of Representatives may be 200, in 50 years 400, in 75 years 800, and in One Century 1600 -‑ it is true that the  [Compact] Report does not make it necessary that the Members shall be thus increased, in a direct propor­tion with the increase of the Inhabitants but only declares that they shall not exceed one for every thirty thousand; they may be less, they may be in that proportion. but they cannot be more numerous‑this indeed appears to us a sufficient provision to produce such a Representation of the people in the house of Reps as will completely and safely accomplish the objects of their Appointment

the 2d. objection [made by Mr. G] "that the people have no security for the right of Election["] is in our Judgment as destitute of founda­tion as the first -- Mr. Gerry admits the right of Election to be well deposited he agrees that only the Electors of Representatives to the most numerous Br[anch] of the state Legislature ought to be Electors of Representatives to the federal Govt. and then asserts that the exercise of this Right vested by the Report in the Electors is not secured‑we are at a loss to know how Mr. Gerry would support this assertion or where the Report is defective on this point‑the Time place & manner of electing Representatives must in the first instance be prescribed by the state Legislatures, but the Congress may make or alter the regulations on this Subject, possibly Mr. G. may ground his Objection upon this authority's being vested in Congress‑we wish to submit our remarks on this clause to your candid consideration -‑ we agree and have always contended that the people ought to enjoy the exclusive right of ap­pointing their Rep. but we also hold it an important principle that as it is of consequence to the Freedom of the people that they should possess the right of Elec­tion so it is essential to the preservation & Existence of the Government that the people should be bound to exercise it for this reason in the Constitution of Massachusetts not only the persons are clearly desig­nated and their Qualifications ascertained, who may vote for Repre­sentatives, but the General Court have a right to compel the Electors to exercise their rights of elections, and thereby to preserve the Govern­ment from Dissolution‑

If the Time place and manner of electing Representatives to the General Court was left entirely to the several Towns in the Common­wealth and if the constitution gave no power to the General Court to require and compel the Towns to Elect Representatives, there wd. be a manifest defect in the Constitution, [and an omission in the Instrument of Government] which agreeably to the Course of human Affairs [would] might in a short‑period subvert the Government‑Town after Town from disaffection or other motives might refuse to elect Representa­tives, Counties & larger districts might combine against sending mem­bers to the General Court, [they might he disposed to divide the state, set up separate states, and the Government might be in this silent manner totally overthrown] and in this silent manner the Government might be wholly destroyed-- If these remarks are just as applying to this State and prove the propriety of vesting as the Constitution has done a power in the General Court to compel the Electors to exercise their right of Elec­tion, they are equally just in Relation to Congress, and equally prove the propriety of vesting in that assembly a power to compel the Electors of the federal Representatives to exercise their rights, and for that pur­pose if necessary to make Regulations concerning the Time place & manner of electing members of the H. of Reps‑

It may be said that the State Legislatures are more capable of regu­lating this Subject than the Congress; that Congress may fix improper places, inconvenient Times, and a manner of electing contrary to the usual practice of the several States, it is not a very probable supposition that a law of this Nature should be enacted by the Congress but let the supposition be ever so probable as applied to tong. it is thirteen Times more probable that some one of the States may make these inconven­ient Regulations than that Congress should enact them Congress will be interested to preserve the United States entire and to prevent a dismemberment‑the individual States may some of them grow rich & powerful; and as the great members of the antient Confederacies have heretofore done, they may be desirous of becoming wholly indepen­dent of the Union and therefore may either omit to form any Regula­tions or Laws, concerning the Time place & manner of electing federal Rep. or they may fix on improper places, inconvenient Times, & a man­ner of Electing wholly disagreeable to the people. Should either of these cases take place, and no power be vested in Congress to revise their Laws or to provide other regulations, the Union might be dismembered and dissolved, without a constitutional power to prevent it But this revisionary power being vested in Congress, the States will make wise & prudent regulations on the Subject of Elections, they will do all that is necessary to keep up a Representation of the People; because they know that in case of omission the Congress will make the necessary provision for this Object‑(Rhode Island required by Cong. /& refused/ to send Delegates)

"Some of the powers of the Legislature are ambiguous & others indefinite & dangerous"‑this clause contains an imputation so very general that no reply in detail can be attempted without commenting on every sen­tence which forms the Grant of powers to Congress‑Most of the sen­tences are transcribed from the present confederation, and we can only observe that it was the intention and honest desire of the Convention to use those expressions that were most easy to be understood and lest equivocal in their meaning; and we flatter ourselves they have not been entirely disappointed -‑ we believe that the powers are closely defined, the expressions as free from ambiguity as the convention could form them, and we never could have assented to the Report had We supposed the Danger Mr. G. predicts‑

The Executive is blended with & will have an undue influence over the Legislature -‑The same objection might be made against the consti­tution of this State, the executive & legislative powers are connected in the same manner by our constitution as they are said by Mr. G to be blended in the Report of the Convention -‑ when the Governor objects to a Bill, it cannot become a law unless 2/3 of both branches afterwards con­cur in enacting it, the same must be done by the Congress provided the president objects‑but as experience has not proved that our Ex­ecutive has an undue influence over the Legislature‑we cannot think the objection well founded

    “The judicial Department will be oppressive" a concise examina­tion of the Report on this Subject may refute this unsupported Objec­tion‑The president with consent of the Senate will appoint the judges -‑ the Governor with advice of Council appoints the judges of this State‑the Senate are in this instance in the nature of a Council to the President and if we have no reason to complain of the manner in which the judges in this Commonwealth are appointed, from the great simi­larity in the two cases there seems to be no Ground of complaint against the manner of appointing the federal Judges‑the judicial Department is divided in to a supreme and inferior Courts‑in a few enumerated instances the supreme Court have original & final jurisdiction‑in all the other cases which fall within the federal judicial, the supreme court may or may not have appellate jurisdiction as congress shall direct ­for the appellate jurisdiction of the supreme court is subject to such exceptions and regulations as Congress may think proper to establish or in other words Congress may determine what causes shall be finally tried in the infe­rior Courts, and in what causes appeals shall be allowed to the Supreme Court‑But it may be said that in a triffling controversy between a Citizen of Massachusetts & N H. or between the U S. & a Citizen of any individual State, or in any of the cases where the Supreme Court have not original jurisdiction, that either of the parties may carry the case by appeal from the inferior Court before the supreme Court, and that the place of their Sessions may be at one extreme of the Union, and thereby the Department may become highly oppressive‑The same Objection may be raised against the judicial Department as established in our Constitution‑Because the General Court may erect a supreme Court, Courts of common pleas, & Justices Courts it may be objected, that in a small cause cognizable by a justice of the peace of the County of Lin­coln between an inhabitant of Cumberland and an inhabitant of Lin­coln, or in an excise or impost Cause between an Inhabitant of Lincoln & the Commonwealth, that either of the parties may appeal from the Court of the justice to the S.C. and that their Sessions may be fixed by the G. Court in Berkshire another extreme of the State; & thus the State Judicial may become oppressive‑We again refute a remark made on a former occasion that as experience has not shewn this Oppression of the judicial under the Constitution of this State, and as the General Court have from Time to Time made such laws as have prevented such oppression, we cannot but suppose that the Members of the federal Government will be actuated by motives equally pure, and that they will enact laws in like manner tending to the ease & happiness of the People

Distinction between the Power to make a law & the law When made [It is proper on the Subject to observe, that there is a distinction between the power to make a law & the law itself  -- the report of the convention in this instance partakes of both in some instances it is a law, and in others merely an authority in pursuance of which Congress may enact Laws-]

Treaties of &c may be formed by the President wt. advice of 2/3 of a Quorum of senate  [It is not improbable upon mature reflection that you may be of Opinion that] the clause as it stands in the report is two 3d. of the senators present -‑ The Senate have power over their own members and can compel their attendance -‑ if the senators are all present, then no Treaty can be formed without the Consent of Nine States or Eighteen Senators, and of the President‑Under the present Confederation Treaties of the highest importance can be formed by the Delegates of Nine States without the concurrence of any other person, so that if the Senators at­tend the Duties of their Office, and they may be compelled, instead of its being more easy as Mr. G. suggests to form Treaties it in Fact may be much more difficult than under the present Confederation, and in our judgment the public Security will not only be increased, but the Objects of Treaties will far more probably be obtained by the powers of forming them being vested in the President & 2/3 of the present Senators, than by their remaining as is provided in the present Confederation. The Report requires the joint consent of both branches of Congress together with the Concurrence of the President to declare war  -‑ this is preferable to vesting that power in the President & Senate‑and as war is not to be desired and always a great calamity, by increasing the Checks, the measure will be difficult ‑- but as peace is forever to be desired, and can be alone obtained by Treaty it seemed preferable to trust it with the President & Senate‑