Debates in the Federal Convention of 1787
by James Madison
Tuesday, June 19
In Committee of the Whole, on the propositions of Mr. PATTERSON, — The substitute offered yesterday by Mr. DICKINSON being rejected by a vote now taken on it, — Connecticut, New York, New Jersey, Delaware, aye — 4; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no — 6; Maryland, divided, — Mr. PATTERSON’S plan was again at large before the Committee.
Mr. MADISON. Much stress has been laid by some gentlemen on the want of power in the Convention to propose any other than a federal plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a federal plan would support this objection. One characteristic was, that in a federal government, the power was exercised not on the people individually, but on the people collectively, on the States. Yet in some instances, as in piracies, captures, &c., the existing Confederacy, and in many instances the amendments to it proposed by Mr. PATTERSON, must operate immediately on individuals. The other characteristic was, that a federal government derived its appointments not immediately from the people, but from the States which they respectively composed. Here, too, were facts on the other side. In two of the States, Connecticut and Rhode Island, the Delegates to Congress were chosen, not by the Legislatures, but by the people at large; and the plan of Mr. PATTERSON intended no change in this particular.
It had been alleged (by Mr. PATTERSON), that the Confederation, having been formed by unanimous consent, could be dissolved by unanimous consent only. Does this doctrine result from the nature of compacts? Does it arise from any particular stipulation in the Articles of Confederation? If we consider the Federal Union as analagous to the fundamental compact by which individuals compose one society, and which must, in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact by a part of the society, would certainly absolve the other part from their obligations to it. If the breach of any article by any of the parties, does not set the others at liberty, it is because the contrary is implied in the compact itself, and particularly by that law of it which gives an indefinite authority to the majority to bind the whole, in all cases. This latter circumstance shows, that we are not to consider the Federal Union as analogous to the social compact of individuals: for if it were so, a majority would have a right to bind the rest, and even to form a new Constitution for the whole; which the gentleman from New Jersey would be among the last to admit. If we consider the Federal Union as analogous, not to the social compacts among individual men, but to the Conventions among individual States, what is the doctrine resulting from these Conventions? Clearly, according to the expositors of the law of nations, that a breach of any one article, by any one party, leaves all the other parties at liberty to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties, indeed, it is expressly stipulated, that a violation of particular articles shall not have this consequence, and even that particular articles shall remain in force during war which is in general understood to dissolve all subsisting treaties. But are there any exceptions of this sort to the Articles of Confederation? So far from it, that there is not even an express stipulation that force shall be used to compel an offending member of the Union to discharge its duty. He observed, that the violations of the Federal Articles had been numerous and notorious. Among the most notorious was an act of New Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congress, and yielded no further to the expostulations of their Deputies, than barely to rescind her vote of refusal, without passing any positive act of compliance. He did not wish to draw any rigid inferences from these observations. He thought it proper, however, that the true nature of the existing Confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands.
Proceeding to the consideration of Mr. PATTERSON’S plan, he stated the object of a proper plan to be twofold, — first, to preserve the Union; secondly, to provide a Government that will remedy the evils felt by the States, both in their united and individual capacities. Examine Mr. PATTERSON’S plan, and say whether it promises satisfaction in these respects.
1. Will it prevent the violations of the law of nations and of treaties, which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congress contain complaints, already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shown to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought, therefore, to be effectually provided, that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever.
2. Will it prevent encroachments on the Federal authority? A tendency to such encroachments has been sufficiently exemplified among ourselves, as well as in every other confederated republic, ancient and modern. By the Federal Articles, transactions with the Indians appertain to Congress, yet in several instances the States have entered into treaties and wars with them. In like manner, no two or more States can form among themselves any treaties, &c., without the consent of Congress: yet Virginia and Maryland, in one instance — Pennsylvania and New Jersey, in another — have entered into compacts without previous application or subsequent apology. No State, again, can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Massachusetts, notwithstanding, the most powerful member of the Union, already raised a body of troops? Is she not now augmenting them, without having even deigned to apprise Congress of her intentions? In fine, have we not seen the public land dealt out to Connecticut to bribe her acquiescence in the decree constitutionally awarded against her claim on the territory of Pennsylvania? For no other possible motive can account for the policy of Congress in that measure. If we recur to the examples of other confederacies, we shall find in all of them the same tendency of the parts to encroach on the authority of the whole. He then reviewed the Amphictyonic and Achæan confederacies, among the ancients, and the Helvetic, Germanic, and Belgic, among the moderns; tracing their analogy to the United States in the constitution and extent of their federal authorities; in the tendency of the particular members to usurp on these authorities, and to bring confusion and ruin on the whole. He observed, that the plan of Mr. PATTERSON, besides omitting a control over the States, as a general defence of the Federal prerogatives, was particularly defective in two of its provisions. In the first place, its ratification was not to be by the people at large; but by the Legislatures. It could not, therefore, render the acts of Congress, in pursuance of their powers, even legally paramount to the acts of the States. And in the second place, it gave to the Federal tribunal an appellate jurisdiction only even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittal in the State tribunals, — of what avail would an appellate tribunal be after an acquittal? Besides, in most, if not all, of the States, the Executives have, by their respective Constitutions, the right of pardoning, — how could this be taken from them by a legislative ratification only?
3. Will it prevent trespasses of the States on each other? Of these enough has been already seen. He instanced acts of Virginia and Maryland, which gave a preference to their own citizens in cases where the citizens of other States are entitled to equality of privileges by the Articles of Confederation. He considered the emissions of paper-money, and other kindred measures, as also aggressions. The States, relatively to one another, being each of them either debtor or creditor, the creditor States must suffer unjustly from every emission by the debtor States. We have seen retaliating acts on the subject, which threatened danger, not to the harmony only, but the tranquillity of the Union. The plan of Mr. PATTERSON, not giving even a negative on the acts of the States, left them as much at liberty as ever to execute their unrighteous projects against each other.
4. Will it secure the internal tranquillity of the States themselves? The insurrections in Massachusetts admonished all the States of the danger to which they were exposed. Yet the plan of Mr. PATTERSON contained no provisions for supplying the defect of the Confederation on this point. According to the republican theory, indeed, right and power being both vested in the majority, are held to be synonymous. According to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority; — in the first place, if the minority happen to include all such as possess the skill and habits of military life, with such as possess the great pecuniary resources, one-third may conquer the remaining two-thirds; in the second place one third of those who participate in the choice of rulers, may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, and who, for obvious reasons, must be more ready to join the standard of sedition than that of established government; and, in the third place, where slavery exists, the republican theory becomes still more fallacious.
5. Will it secure a good internal legislation and administration to the particular States? In developing the evils which vitiate the political system of the United States, it is proper to take into view those which prevail within the States individually, as well as those which affect them collectively; since the former indirectly affect the whole, and there is great reason to believe that the pressure of them had a full share in the motives which produced the present Convention. Under this head he enumerated and animadverted on, — first, the multiplicity of the laws passed by the several States; secondly, the mutability of their laws; thirdly, the injustice of them; and fourthly, the impotence of them; — observing that Mr. PATTERSON’S plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the community.
6. Will it secure the Union against the influence of foreign powers over its members? He pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practised among the Amphictyonic confederates, first by the Kings of Persia, and afterwards, fatally, by Philip of Macedon; among the Achæans, first by Macedon, and afterwards, no less fatally, by Rome; among the Swiss, by Austria, France and the lesser neighbouring powers; among the members of the Germanic body, by France, England, Spain and Russia; and in the Belgic republic, by all the great neighbouring powers. The plan of Mr. PATTERSON, not giving to the general councils any negative on the will of the particular States, left the door open for the like pernicious machinations among ourselves.
7. He begged the smaller States, which were most attached to Mr. PATTERSON’S plan, to consider the situation in which it would leave them. In the first place, they would continue to bear the whole expense of maintaining their Delegates in Congress. It ought not to be said that, if they were willing to bear this burthen, no others had a right to complain. As far as it led the smaller States to forbear keeping up a representation, by which the public business was delayed, it was evidently a matter of common concern. An examination of the minutes of Congress would satisfy every one, that the public business had been frequently delayed by this cause; and that the States most frequently unrepresented in Congress were not the larger States. He reminded the Convention of another consequence of leaving on a small State the burden of maintaining a representation in Congress. During a considerable period of the war, one of the Representatives of Delaware, in whom alone, before the signing of the Confederation, the entire vote of that State, and after that event one half of its vote, frequently resided, was a citizen and resident of Pennsylvania, and held an office in his own State incompatible with an appointment from it to Congress. During another period, the same State was represented by three Delegates, two of whom were citizens of Pennsylvania, and the third a citizen of New Jersey. These expedients must have been intended to avoid the burden of supporting Delegates from their own State. But whatever might have been the cause, was not in effect the vote of one state doubled, and the influence of another increased by it? In the second place the coercion on which the efficacy of the plan depends can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphictyonic confederates; and the ban of the German Empire. It was the cobweb which could entangle the weak, but would be the sport of the strong.
8. He begged them to consider the situation in which they would remain, in case their pertinacious adherence to an inadmissible plan should prevent the adoption of any plan. The contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the union of the States be dissolved, and one of two consequences must happen. Either the States must remain individually independent and sovereign; or two or more confederacies must be formed among them. In the first event, would the small States be more secure against the ambition and power of their larger neighbours, than they would be under a General Government pervading with equal energy every part of the Empire, and having an equal interest in protecting every part against every other part? In the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present Confederacy, which gives to each member an equal suffrage; or that they would exact less severe concessions from the smaller States, than are proposed in the scheme of Mr. RANDOLPH?
The great difficulty lies in the affair of representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from New Jersey, (Mr. BREARLY and Mr. PATTERSON,) that it would not be just to allow Virginia, which was sixteen times as large as Delaware, an equal vote only. Their language was, that it would not be safe for Delaware to allow Virginia sixteen times as many votes. The expedient proposed by them was, that all the States should be thrown into one mass, and a new partition be made into thirteen equal parts. Would such a scheme be practicable? The dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices, of different States, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe (the King of France,) directed by the wisdom of one of the most enlightened and patriotic ministers (Mr. Neckar) that any age has produced, to equalize, in some points only, the different usages and regulations of the different provinces. But, admitting a general amalgamation and repartition of the States to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real, — would not a particular and voluntary coalition of these with their neighbours be less inconvenient to the whole community, and equally effectual for their own safety? If New Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the inconvenience, nor the benefit, of the expedient, to themselves, would be lessened by confining it to themselves? The prospect of many new States to the westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they should be entitled to vote according to their proportion of inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than ever, might give law to the whole.
On a question for postponing generally the first proposition of Mr. PATTERSON’S plan, it was agreed to, — New York and New Jersey only being, no.
On the question, moved by Mr. KING, whether the Committee should rise, and Mr. RANDOLPH’S proposition be reported without alteration, which was in fact a question whether Mr. RANDOLPH’S should be adhered to as preferable to those of Mr. PATTERSON, — Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye — 7; New York, New Jersey, Delaware, no — 3; Maryland, divided.
Mr. RANDOLPH’S plan as reported from the Committee [q. v. June 13th] being before the House, and —
The first Resolution, “that a national Government ought to be established, consisting, &c.,” being taken up,
Mr. WILSON observed that, by a national Government, he did not mean one that would swallow up the State Governments, as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of Colonel HAMILTON, that they might not only subsist, but subsist on friendly terms with the former. They were absolutely necessary for certain purposes, which the former could not reach. All large governments must be subdivided into lesser jurisdictions. As examples he mentioned Persia, Rome, and particularly the divisions and subdivisions of England by Alfred.
Colonel HAMILTON coincided with the proposition as it stood in the Report. He had not been understood yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National and State Legislatures; that the former must therefore have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it. Even as corporations, the extent of some of them, as Virginia, Massachusetts, &c., would be formidable. As States, he thought they ought to be abolished. But he admitted the necessity of leaving in them subordinate jurisdictions. The examples of Persia and the Roman Empire, cited by Mr. WILSON, were, he thought, in favor of his doctrine, the great powers delegated to the Satraps and Proconsuls having frequently produced revolts and schemes of independence.
Mr. KING wished, as every thing depended on this proposition, that no objection might be improperly indulged against the phraseology of it. He conceived that the import of the term “States,” “sovereignty,” “national,” “federal,” had been often used and applied in the discussions inaccurately and delusively. The States were not “sovereigns” in the sense contended for by some. They did not possess the peculiar features of sovereignty, — they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the States comprises the idea of a confederation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States; they can act, and their acts will be binding, against the instructions of the States. If they declare war, war is de jure declared; captures made in pursuance of it are lawful; no acts of the States can vary the situation, or prevent the judicial consequences. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects, they formed a nation in others. The Convention could clearly deliberate on and propose any alterations that Congress could have done under the Federal Articles. And could not Congress propose, by virtue of the last Article, a change in any article whatever, — and as well that relating to the equality of suffrage, as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.
Mr. MARTIN said, he considered that the separation from Great Britain placed the thirteen States in a state of nature towards each other; that they would have remained in that state till this time, but for the Confederation; that they entered into the Confederation on the footing of equality; that they met now to amend it, on the same footing; and that he could never accede to a plan that would introduce an inequality, and lay ten States at the mercy of Virginia, Massachusetts and Pennsylvania.
Mr. WILSON could not admit the doctrine that when the colonies became independent of Great Britain, they became independent also of each other. He read the Declaration of Independence, observing thereon, that the United Colonies were declared to be free and independent States; and inferring, that they were independent, not individually but unitedly, and that they were confederated, as they were independent States.
Colonel HAMILTON assented to the doctrine of Mr. WILSON. He denied the doctrine that the States were thrown into a state of nature. He was not yet prepared to admit the doctrine that the Confederacy could be dissolved by partial infractions of it. He admitted that the States met now on an equal footing, but could see no inference from that against concerting a change of the system in this particular. He took this occasion of observing, for the purpose of appeasing the fear of the small States, that two circumstances would render them secure under a national Government in which they might lose the equality of rank which they now held: one was the local situation of the three largest States, Virginia, Massachusetts and Pennsylvania. They were separated from each other by distance of place, and equally so, by all the peculiarities which distinguish the interests of one State from those of another. No combination, therefore, could be dreaded. In the second place, as there was a gradation in the States, from Virginia, the largest, down to Delaware, the smallest, it would always happen that ambitious combinations among a few States might and would be counteracted by defensive combinations of greater extent among the rest. No combination has been seen among the large counties, merely as such, against lesser counties. The more close the union of the States, and the more complete the authority of the whole, the less opportunity will be allowed to the stronger States to injure the weaker.