Debates in the Federal Convention of 1787
by James Madison
Wednesday, June 20
In Convention, — Mr. WILLIAM BLOUNT, from North Carolina, took his seat.
The first Resolution of the Report of the Committee of the Whole being before the House –
Mr. ELLSWORTH, seconded by Mr. GORHAM, moves to alter it, so as to run “that the government of the United States ought to consist of a supreme Legislative, Executive and Judiciary.” This alteration, he said, would drop the word national, and retain the proper title “the United States.” He could not admit the doctrine that a breach of any of the Federal Articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished, also, the plan of the Convention to go forth as an amendment of the Articles of the Confederation, since, under this idea, the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification, several succeeding conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up constitutions.
Mr. RANDOLPH did not object to the change of expression, but apprised the gentleman who wished for it, that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification.
The motion of Mr. ELLSWORTH was acquiesced in, nem. con.
The second Resolution, “that the national legislature ought to consist of two branches,” being taken up, the word “national” struck out, as of course.
Mr. LANSING observed, that the true question here was, whether the Convention would adhere to, or depart from, the foundation of the present Confederacy; and moved, instead of the second Resolution, “that the powers of legislation be vested in the United States in Congress.” He had already assigned two reasons against such an innovation as was proposed, — first, the want of competent powers in the Convention; secondly, the state of the public mind. It had been observed (by Mr. MADISON), in discussing the first point, that in two States the Delegates to Congress were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the Delegates, however chosen, did not represent the people, merely as so many individuals; but as forming a sovereign State. Mr. RANDOLPH put it, he said, on its true footing, namely that the public safety superseded the scruple arising from the review of our powers. But in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. Mr. WILSON contended, that, as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. Any act whatever of so respectable a body must have a great effect; and if it does not succeed will be a source of great dissensions. He admitted that there was no certain criterion of the public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the States to the scheme of an Impost. It could not be expected that those possessing sovereignty could ever voluntarily part with it. It was not to be expected from any one State, much less from thirteen. He proceeded to make some observations on the plan itself, and the arguments urged in support of it. The point of representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. A great inequality existed in the counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the State prejudices, — will not any other body whether chosen by the Legislatures or people of the States, also represent their prejudices? It had been asserted by his colleague (Colonel HAMILTON), that there was no coincidence of interests among the large States that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the States, there was equal safety for all of them whether the representation remained as heretofore, or were proportioned as now proposed. It is proposed that the General Legislature shall have a negative on the laws of the States. Is it conceivable that there will be leisure for such a task? There will, on the most moderate calculation, be as many acts sent up from the States as there are days in the year. Will the members of the General Legislature be competent judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in New Hampshire? Such a negative would be more injurious than that of Great Britain heretofore was. It is said that the National Government must have the influence arising from the grant of offices and honors. In order to render such a government effectual, he believed such an influence to be necessary. But if the States will not agree to it, it is in vain, worse than in vain, to make the proposition. If this influence is to be attained, the States must be entirely abolished. Will any one say, this would ever be agreed to? He doubted whether any General Government, equally beneficial to all, can be attained. That now under consideration, he is sure, must be utterly unattainable. He had another objection. The system was too novel and complex. No man could foresee what its operation will be, either with respect to the General Government or the State Governments. One or other, it has been surmised, must absorb the whole.
Col. MASON did not expect this point would have been reagitated. The essential differences between the two plans had been clearly stated. The principal objections against that of Mr. RANDOLPH were, the want of power, and the want of practicability. There can be no weight in the first, as the fiat is not to be here, but in the people. He thought with his colleague (Mr. RANDOLPH,) that there were, besides, certain crises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual treaty with Great Britain, in forming which the Commissioners of the United States had boldly disregarded the improvident shackles of Congress; had given to their country an honorable and happy peace, and, instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The impracticability of gaining the public concurrence, he thought, was still more groundless. Mr. LANSING had cited the attempts of Congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (Mr. LANSING) opposed. He thought a very different inference ought to have been drawn, viz. that the plan which Mr. LANSING espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Congress as a body, much less on any particular members of it. He meant, however, to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for the privation of so many other enjoyments; and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests, so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, — and that, too, not chosen immediately by themselves? They never will. They never ought. Will they trust such a body with the regulation of their trade, with the regulation of their taxes, with all the other great powers which are in contemplation? Will they give unbounded confidence to a secret Journal, — to the intrigues, to the factions, which in the nature of things appertain to such an assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years ’78, ’79, and ’80. It will be said that, if the people are averse to parting with power, why is it hoped that they will part with it to a national Legislature? The proper answer is, that in this case they do not part with power: they only transfer it from one set of immediate representatives to another set. Much has been said of the unsettled state of the mind of the people. He believed the mind of the people of America, as elsewhere, was unsettled as to some points, but settled as to others. In two points he was sure it was well settled, — first, in an attachment to republican government; secondly, in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishment of two branches in the Legislature are the State of Pennsylvania, and Congress; and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that body further powers. It was acknowledged by Mr. PATTERSON, that this plan could not be enforced without military coercion. Does he consider the force of this concession? The most jarring elements of nature, fire and water themselves, are not more incompatible than such a mixture of civil liberty and military execution. Will the militia march from one State into another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the citizens of the invaded State assist one another, till they rise as one man and shake off the Union altogether? Rebellion is the only case in which the military force of the State can be properly exerted against its citizens. In one point of view, he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death was a severity not yet adopted by despotism itself; yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat, that, notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Governments, or render them absolutely insignificant. They were as necessary as the General Government, and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, though comprising so many distinguished characters, could not be expected to make a faultless Government. And he would prefer trusting to posterity the amendment of its defects, rather than to push the experiment too far.
Mr. LUTHER MARTIN agreed with Colonel MASON as to the importance of the State Governments: he would support them at the expense of the General Government, which was instituted for the purpose of that support. He saw no necessity for two branches; and if it existed, Congress might be organized into two. He considered Congress as representing the people, being chosen by the Legislatures, who were chosen by the people. At any rate, Congress represented the Legislatures; and it was the Legislatures, not the people, who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the States must always have been ready to place further confidence in Congress. The causes of repugnance must therefore be looked for elsewhere. At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one. To these they look up for the security of their lives, liberties, and properties; to these they must look up. The Federal Government they formed to defend the whole against foreign nations in time of war, and to defend the lesser States against the ambition of the larger. They are afraid of granting power unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support; and expose the lesser to being swallowed up by the larger. He conceived also that the people of the States, having already vested their powers in their respective Legislatures, could not resume them without a dissolution of their Governments. He was against conventions in the States — was not against assisting States against rebellious subjects — thought the federal plan of Mr. PATTERSON did not require coercion more than the national one, as the latter must depend for the deficiency of its revenues on requisitions and quotas — and that a national judiciary, extended into the States, would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness.
Mr. SHERMAN seconded and supported Mr. LANSING’S motion. He admitted two branches to be necessary in the State Legislatures, but saw no necessity in a confederacy of States. The examples were all of a single council. Congress carried us through the war, and perhaps as well as any government could have done. The complaints at present are, not that the views of Congress are unwise or unfaithful, but that their powers are insufficient for the execution of their views. The national debt, and the want of power somewhere to draw forth the national resources, are the great matters that press. All the States were sensible of the defect of power in Congress. He thought much might be said in apology for the failure of the State Legislatures to comply with the Confederation. They were afraid of leaning too hard on the people by accumulating taxes; no constitutional rule had been, or could be observed in the quotas; the accounts also were unsettled, and every State supposed itself in advance, rather than in arrears. For want of a general system, taxes to a due amount had not been drawn from trade, which was the most convenient resource. As almost all the States had agreed to the recommendation of Congress on the subject of an impost, it appeared clearly that they were willing to trust Congress with power to draw a revenue from trade. There is no weight, therefore, in the argument drawn from a distrust of Congress; for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Congress, indeed, by the Confederation, have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied; and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to Congress, to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections, a few designing men in the large districts would carry their points; and the people would have no more confidence in their new representatives than in Congress. He saw no reason why the State Legislatures should be unfriendly, as had been suggested, to Congress. If they appoint Congress, and approve of their measures, they would be rather favourable and partial to them. The disparity of the States in point of size, he perceived, was the main difficulty. But the large States had not yet suffered from the equality of votes enjoyed by the smaller ones. In all great and general points, the interests of all the States were the same. The State of Virginia, notwithstanding the equality of votes, ratified the Confederation without even proposing any alteration. Massachusetts also ratified without any material difficulty, &c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the States, as some had proposed, would dissolve our treaties with foreign nations, which had been formed with us, as confederated States. He did not, however, suppose that the creation of two branches in the Legislature would have such an effect. If the difficulty on the subject of representation cannot be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other. This was necessary to secure the rights of the lesser States; otherwise three or four of the large States would rule the others as they please. Each State, like each individual, had its peculiar habits, usages, and manners, which constituted its happiness. It would not, therefore, give to others a power over this happiness, any more than an individual would do, when he could avoid it.
Mr. WILSON urged the necessity of two branches; observed, that if a proper model was not to be found in other confederacies, it was not to be wondered at. The number of them was small and the duration of some at least short. The Amphictyonic and Achæan were formed in the infancy of political science; and appear, by their history and fate, to have contained radical defects. The Swiss and Belgic confederacies were held together, not by any vital principle of energy, but by the incumbent pressure of formidable neighboring nations. The German owed its continuance to the influence of the House of Austria. He appealed to our own experience for the defects of our confederacy. He had been six years, of the twelve since the commencement of the Revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others, whether, on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes than the constitution of Congress. In many instances it went on even against the difficulties arising from Congress themselves. He admitted that the large States did accede, as had been stated to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding, from the same motive, to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures and the General Legislature; observing, that the members of the former would have views and feelings very distinct in this respect, from their constituents. A private citizen of a State is indifferent whether power be exercised by the General or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legislature with the eye of a jealous rival. He observed that the addresses of Congress to the people at large had always been better received and produced greater effect, than those made to the Legislatures.
On the question for postponing, in order to take up Mr. LANSING’S proposition, “to vest the powers of legislation in Congress,” — Connecticut, New York, New Jersey, Delaware, aye — 4; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no — 6; Maryland, divided.
On motion of the Deputies from Delaware, the question on the second Resolution in the Report from the Committee of the Whole, was postponed till to-morrow.