On 8 April 1787 Madison in a letter to Edmund Randolph
wrote
his ideas for a new constitution that Randolph would accept into his
Virginia Plan and present to the Convention in Philadelphia on May 29.
I am glad to find that you are turning your
thoughts towards the business of May next.
My despair of your finding the necessary leisure
as signified in one of your letters with the probability
that some leading propositions at least would be
expected from Virginia had engaged me in a closer
attention to the subject than I should otherwise have given.
I will just hint the ideas which have occurred,
leaving explanations for our interview.
I think with you that it will be well to retain as much as
possible of the old Confederation, though I doubt whether
it may not be best to work the valuable articles into the
new System, instead of engrafting the latter on the former.
I am also perfectly of your opinion that
in framing a system, no material sacrifices
ought to be made to local or temporary prejudices.
An explanatory address must of necessity accompany
the result of the Convention on the main object.
I am not sure that it will be practicable to present the
several parts of the reform in so detached a manner
to the States as that a partial adoption will be binding.
Particular States may view the different
articles as conditions of each other,
and would only ratify them as such.
Others might ratify them as independent propositions.
The consequence would be that
the ratification of both would go for nothing.
I have not however examined this point thoroughly.
In truth my ideas of a reform strike so deeply at
the old Confederation and lead to such a systematic
change that they scarcely admit of the expedient.
I hold it for a fundamental point that an individual
independence of the States is utterly irreconcilable
with the idea of an aggregate sovereignty.
I think at the same time that a consolidation
of the States into one simple republic is not less
unattainable than it would be inexpedient.
Let it be tried then whether any middle ground can
be taken which will at once support a due supremacy
of the national authority, and leave in force the local
authorities so far as they can be subordinately useful.
The first step to be taken is I think
a change in the principle of representation.
According to the present form of the Union, an equality
of suffrage if not just towards the larger members of it,
is at least safe to them, as the liberty they exercise
of rejecting or executing the acts of Congress,
is uncontrollable by the nominal sovereignty of Congress.
Under a system which would operate
without the intervention of the States,
the case would be materially altered.
A vote from Delaware would have the same effect
as one from Massachusetts or Virginia.
Let the national Government be armed
with a positive & complete authority in all cases
where uniform measures are necessary.
As in trade &c. &c.
Let it also retain the powers which it now possesses.
Let it have a negative in all cases whatsoever
on the Legislative Acts of the States
as the King of Great Britain heretofore had.
This I conceive to be essential and the least
possible abridgement of the State Sovereignties.
Without such a defensive power, every positive power
that can be given on paper will be unavailing.
It will also give internal stability to the States.
There has been no moment since the peace
at which the federal assent would have been
given to paper money &c. &c.
Let this national supremacy be extended
also to the Judiciary department.
If the judges in the last resort depend on the States
& are bound by their oaths to them and not to the Union,
the intention of the law and the interests of the nation
may be defeated by the obsequiousness of the
Tribunals to the policy or prejudices of the States.
It seems at least essential that an appeal should lie
to some national tribunals in all cases which concern
foreigners or inhabitants of other States.
The admiralty jurisdiction may be fully
submitted to the national Government.
The supremacy of the whole in the Executive
department seems liable to some difficulty.
Perhaps an extension of it to the case of
the Militia may be necessary & sufficient.
A Government formed of such extensive powers
ought to be well organized.
The Legislative department may be
divided into two branches:
One of them to be chosen every two years by the
Legislatures or the people at large; the other to consist
of a more select number, holding their appointments
for a longer term and going out in rotation.
Perhaps the negative on the State laws
may be most conveniently lodged in this branch.
A Council of Revision may be superadded,
including the great ministerial officers.
A National Executive will also be necessary.
I have scarcely ventured to form my own opinion yet
either of the manner in which it ought to be constituted
or of the authorities with which it ought to be clothed.
An article ought to be inserted expressly
guaranteeing the tranquility of the States
against internal as well as external dangers.
To give the new system its proper energy
it will be desirable to have it ratified by the authority
of the people and not merely by that of the Legislatures.
I am afraid you will think this project, if not extravagant,
absolutely unattainable and unworthy of being attempted.
Conceiving it myself to go no further than is essential,
the objections drawn from this source are to be laid aside.
I flatter myself however that they may be
less formidable on trial than in contemplation.
The change in the principle of representation will be relished
by a majority of the States and those too of most influence.
The Northern States will be reconciled to it by
the actual superiority of their populousness:
the Southern by their expected superiority in this point.
This principle established, the repugnance of the large
States to part with power will in a great degree subside,
and the smaller States must ultimately
yield to the predominant Will.
It is also already seen by many & must by degrees
be seen by all that unless the Union be organized
efficiently & on Republican Principles, innovations
of a much more objectionable form may be obtruded.1
Madison on 16 April 1787 wrote this letter to George Washington:
I have been honored with your letter of the 31 of March,
and find with much pleasure that your views of the
reform which ought to be pursued by the Convention,
give a sanction to those which I have entertained.
Temporizing applications will dishonor the Councils
which propose them, and may foment the internal
malignity of the disease, at the same time that they
produce an ostensible palliation of it.
Radical attempts, although unsuccessful,
will at least justify the authors of them.
Having been lately led to revolve the subject which is
to undergo the discussion of the Convention, and formed
in my mind some outlines of a new system, I take the
liberty of submitting them without apology to your eye.
Conceiving that an individual independence of the States is
utterly irreconcilable with their aggregate sovereignty; and
that a consolidation of the whole into one simple republic
would be as inexpedient as it is unattainable, I have sought
for some middle ground, which may at once support a due
supremacy of the national authority, and not exclude the
local authorities wherever they can be subordinately useful.
I would propose as the ground-work that
a change be made in the principle of representation.
According to the present form of the Union in which
the intervention of the States is in all great cases
necessary to effectuate the measures of Congress,
an equality of suffrage, does not destroy the
inequality of importance in the several members.
No one will deny that Virginia and Massachusetts
have more weight and influence both within &
without Congress than Delaware or Rhode Island.
Under a system which would operate in many essential
points without the intervention of the State legislatures,
the case would be materially altered.
A vote in the national Councils from Delaware
would then have the same effect and value
as one from the largest State in the Union.
I am ready to believe that such a change
would not be attended with much difficulty.
A majority of the States and those of greatest
influence will regard it as favorable to them.
To the Northern States it will be recommended
by their present populousness, to the Southern
by their expected advantage in this respect.
The lesser States must in every event
yield to the predominant will.
But the consideration which particularly urges
a change in the representation is that it will
obviate the principal objections of the larger
States to the necessary concessions of power.
I would propose next that in addition to the present
federal powers, the national Government should be
armed with positive and complete authority in all cases
which require uniformity; such as the regulation of trade,
including the right of taxing both exports & imports,
the fixing the terms and forms of naturalization, &c &c.
Over and above this positive power, a negative
in all cases whatsoever on the legislative acts of the States,
as heretofore exercised by the Kingly prerogative,
appears to me to be absolutely necessary, and to be the
least possible encroachment on the State jurisdictions.
Without this defensive power, every positive power
that can be given on paper will be evaded & defeated.
The States will continue to invade the national
jurisdiction to violate treaties and the law of
nations & to harass each other with rival and spiteful
measures dictated by mistaken views of interest.
Another happy effect of this prerogative would be
its control on the internal vicissitudes of State policy;
and the aggressions of interested majorities
on the rights of minorities and of individuals.
The great desideratum which has not yet been found
for Republican Governments, seems to be some
disinterested & dispassionate umpire in disputes
between different passions & interests in the State.
The majority who alone have the right of decision,
have frequently an interest real or supposed in abusing it.
In Monarchies the sovereign is more neutral to the interests
and views of different parties; but unfortunately he too often
forms interests of his own repugnant to those of the whole.
Might not the national prerogative here suggested
be found sufficiently disinterested for the decision
of local questions of policy, while it would itself be
sufficiently restrained from the pursuit of interests
adverse to those of the whole Society?
There has not been any moment since the peace at which
the representatives of the union would have given an assent
to paper money or any other measure of a kindred nature.
The national supremacy ought also to be extended
as I conceive to the Judiciary departments.
If those who are to expound & apply the laws,
are connected by their interests & their oaths
with the particular States wholly, and not with
the Union, the participation of the Union in the making
of the laws may be possibly rendered unavailing.
It seems at least necessary that the oaths of the Judges
should include a fidelity to the general as well as local
constitution, and that an appeal should lie to some
national tribunals in all cases to which foreigners
or inhabitants of other States may be parties.
The admiralty jurisdiction seems to fall entirely
within the purview of the national Government.
The national supremacy in the Executive
departments is liable to some difficulty, unless
the officers administering them could be made
appointable by the supreme Government.
The Militia ought certainly to be placed in
some form or other under the authority which
is entrusted with the general protection and defense.
A Government composed of such extensive powers
should be well organized and balanced.
The Legislative department might be divided into two
branches; one of them chosen every two years by the
people at large or by the legislatures; the other to
consist of fewer members, to hold their places for a
longer term, and to go out in such a rotation as always
to leave in office a large majority of old members.
Perhaps the negative on the laws might be
most conveniently exercised by this branch.
As a further check, a council of revision including
the great ministerial officers might be superadded.
A national Executive must also be provided.
I have scarcely ventured as yet to form my own opinion
either of the manner in which it ought to be constituted
or of the authorities with which it ought to be clothed.
An article should be inserted expressly guaranteeing
the tranquility of the States against internal
as well as external dangers.
In like manner the right of coercion
should be expressly declared.
With the resources of Commerce in hand the
national administration might always find means
of exerting it either by sea or land; but the difficulty
& awkwardness of operating by force on the
collective will of a State render it particularly
desirable that the necessity of it might be precluded.
Perhaps the negative on the laws might create such
a mutuality of dependence between the General and
particular authorities, as to answer this purpose.
Or perhaps some defined objects of taxation might be
submitted along with commerce, to the general authority.
To give a new System its proper validity and energy,
a ratification must be obtained from the people and not
merely from the ordinary authority of the Legislatures.
This will be the more essential as inroads on the
existing Constitutions of the States will be unavoidable.
The enclosed address to the States on the subject
of the Treaty of peace has been agreed to by Congress
& forwarded to the several Executives.
We foresee the irritation which it will excite
in many of our Countrymen but could not
withhold our approbation of the measure.
Both the resolutions and the address
passed without a dissenting voice.
Congress continue to be thin,
and of course do little business of importance.
The settlement of the public accounts,
the disposition of the public lands,
and arrangements with Spain are subjects
which claim their particular attention.
As a step towards the first, the treasury board are charged
with the task of reporting a plan by which the final decision
on the claims of the States will be handed over from
Congress to a select set of men bound by the oaths,
and clothed with the powers of Chancellors.
As to the Second article, Congress have it
themselves under consideration.
Between 6 & 700 thousand acres have been
surveyed and are ready for sale.
The mode of sale however will probably be
a source of different opinions, as will the mode
of disposing of the unsurveyed residue.
The Eastern gentlemen remain attached
to the scheme of townships.
Many others are equally strenuous
for indiscriminate locations.
The States, which have lands of their own for sale,
are suspected of not being hearty in bringing
the federal lands to market.
The business with Spain is becoming
extremely delicate, and the information
from the Western settlements truly alarming.
A motion was made some days ago for an adjournment
of Congress for a short period and an appointment
of Philadelphia for their reassembling.
The eccentricity of this place as well with regard to East and
West as to North & South has I find been for a considerable
time a thorn in the minds of many of the Southern members.
Suspicion too has charged some important votes on the
weight thrown by the present position of Congress into the
Eastern Scale and predicts that the Eastern members will
never concur in any substantial provision or movement for
a proper permanent seat for the national Government while
they remain so much gratified in its temporary residence.
These seem to have been the operative motives with those
on one side who were not locally interested in the removal.
On the other side the motives are obvious.
Those of real weight were drawn from the apparent caprice
with which Congress might be reproached and particularly
from the peculiarity of the existing moment.
I own that I think so much regard due to these
considerations that notwithstanding the powerful ones on the
other side, I should have assented with great repugnance
to the motion and would even have voted against it if any
probability had existed that by waiting for a proper time,
a proper measure might not be lost for a very long time.
The plan which I should have judged most eligible would
have been to fix on the removal whenever a vote could
be obtained but so as that it should not take effect
until the commencement of the ensuing federal year.
And if an immediate removal had been resolved on,
I had intended to propose such a change in the plan.
No final question was taken in the case.
Some preliminary questions showed that
six States were in favor of the motion.
Rhode Island the 7th was at first on the same side,
and Mr. Varnum one of her delegates continues so.
His colleague was overcome by the solicitations
of his Eastern brethren.
As neither Maryland nor South Carolina were on the floor,
it seems pretty evident that New York has a very
precarious tenure of the advantages derived
from the abode of Congress.
We understand that the discontents in Massachusetts,
which lately produced an appeal to the sword, are now
producing a trial of strength in the field of electioneering.
The Governor will be displaced.
The Senate is said to be already of a popular complexion,
and it is expected the other branch will be still more so.
Paper money it is surmised will be the engine to be
played off against creditors both public and private.
As the event of the Elections however is not yet decided,
this information must be too much blended with
conjecture to be regarded as matter of certainty.
I do not learn that the proposed act relating to Vermont
has yet gone through all the stages of legislation here;
nor can I say whether it will finally pass or not.
In truth, it having not been a subject of conversation
for some time, I am unable to say what has been done
or is likely to be done with it.2
In this letter Madison gave Washington an introduction to many
of the issues that would be discussed during the convention.
James Madison arrived in Philadelphia on
3 May 1787 for a great convention of states.
On May 13 he was glad to hear that General Washington was there.
While they waited for a quorum of delegates,
the Virginians met for two or three hours on eleven days.
They approved Madison’s plan that would be presented by Edmund Randolph.
There were 29 delegates present by May 25.
In the next four months 55 delegates would be there at some time or other.
The constitutional convention began in Philadelphia on rainy May 25.
Madison sat at a desk facing the delegates with his back to
presiding Washington so that he could take detailed notes on
all the speakers that he edited when they were not meeting.
Having tried to study how many constitutions were formed, he was
determined that people would have access to the debates for this one.
They had elected Washington chairman of the Committee of the Whole,
and they approved the rule that “nothing spoken in the House be
printed or otherwise published or communicated without leave.”
Alexander Hamilton of New York made a speech proposing that
they debate whether the United States wanted one nation with
a national government, and they voted for one
with a “supreme legislature, executive, and judiciary.”
They would not try to amend the Articles of Confederation.
Delegates in six states approved these ideas;
two states were divided, and the others lacked a quorum.
Madison made this speech about factions on June 6:
Mr. Madison considered an election of one branch at least
of the Legislature by the people immediately, as a clear
principle of free Government and that this mode under
proper regulations had the additional advantage of securing
better representatives, as well as of avoiding too great
an agency of the State Governments in the General one.
He differed from the member from Connecticut
(Mr. Sharman) in thinking the objects mentioned to be all
the principal ones that required a National Government.
Those were certainly important and necessary objects;
but he combined with them the necessity of providing
more effectually for the security of private rights
and the steady dispensation of Justice.
Interferences with these were evils, which had more
perhaps than anything else, produced this convention.
Was it to be supposed that republican liberty could long
exist under the abuses of it practiced in some of the States.
The gentleman (Mr. Sharman) had admitted that
in a very small State, faction & oppression would prevail.
It was to be inferred then that wherever
these prevailed, the State was too small.
Had they not prevailed in the largest as well as
the smallest, though less than in the smallest; and
were we not thence admonished to enlarge the sphere
as far as the nature of the Government would admit?
This was the only defense against the
inconveniencies of democracy consistent
with the democratic form of Government.
All civilized Societies would be divided into different
Sects, Factions, & interests, as they happened to
consist of rich & poor, debtors & creditors, the landed,
the manufacturing, the commercial interests,
the inhabitants of this district or that district,
the followers of this political leader or that political leader,
the disciples of this religious Sect or that religious Sect.
In all cases where a majority are united by a common
interest or passion, the rights of the minority are in danger.
What motives are to restrain them?
A prudent regard to the maxim that
honesty is the best policy
is found by experience to be as little regarded
by bodies of men as by individuals.
Respect for character is always diminished
in proportion to the number among whom
the blame or praise is to be divided.
Conscience, the only remaining tie,
is known to be inadequate in individuals:
In large numbers, little is to be expected from it.
Besides, Religion itself may become a motive
to persecution & oppression.
These observations are verified by
the Histories of every Country ancient & modern.
In Greece & Rome the rich & poor, the creditors & debtors,
as well as the patricians & plebeians alternately
oppressed each other with equal unmercifulness.
What a source of oppression was the relation between the
parent cities of Rome, Athens & Carthage, & their respective
provinces: the former possessing the power, & the latter
being sufficiently distinguished to be separate objects of it?
Why was America so justly apprehensive
of Parliamentary injustice?
Because Great Britain had a separate interest
real or supposed, & if her authority had been admitted,
could have pursued that interest at our expense.
We have seen the mere distinction of color made in the
most enlightened period of time, a ground of the most
oppressive dominion ever exercised by man over man.
What has been the source of those unjust laws
complained of among ourselves?
Has it not been the real or supposed interest
of the major number?
Debtors have defrauded their creditors.
The landed interest has borne hard
on the mercantile interest.
The Holders of one species of property have thrown a
disproportion of taxes on the holders of another species.
The lesson we are to draw from the whole is that where a
majority are united by a common sentiment and have an
opportunity, the rights of the minor party become insecure.
In a Republican Government the Majority
if united, have always an opportunity.
The only remedy is to enlarge the sphere & thereby divide
the community into so great a number of interests & parties,
that in the 1st place a majority will not be likely at the same
moment to have a common interest separate from that
of the whole or of the minority; and in the 2nd place,
that in case they should have such an interest,
they may not be apt to unite in the pursuit of it.
It was incumbent on us then to try this remedy
and with that view to frame a republican system
on such a scale & in such a form as will control
all the evils which have been experienced.3
Also on June 6 Madison, after seconding Mr. Wilson’s motion,
made this speech on the revisionary power:
He observed that the great difficulty in rendering the
Executive competent to its own defense arose from the
nature of Republican Government which could not give
to an individual citizen that settled pre-eminence in
the eyes of the rest, that weight of property, that
personal interest against betraying the national interest,
which appertain to a hereditary magistrate.
In a Republic personal merit alone could be the
ground of political exaltation, but it would rarely
happen that this merit would be so pre-eminent
as to produce universal acquiescence.
The Executive Magistrate would be envied
& assailed by disappointed competitors.
His firmness therefore would need support.
He would not possess those great emoluments from his
station nor that permanent stake in the public interest which
would place him out of the reach of foreign corruption.
He would stand in need therefore
of being controlled as well as supported.
An association of the Judges in his revisionary function
would both double the advantage and diminish the danger.
It would also enable the Judiciary Department the better
to defend itself against Legislative encroachments.
Two objections had been made 1st that the Judges ought
not to be subject to the bias which a participation in the
making of laws might give in the exposition of them.
2dly that the Judiciary Department ought to be separate
& distinct from the other great Departments.
The 1st objection had some weight; but it was much
diminished by reflecting that a small proportion of the laws
coming in question before a Judge would be such wherein
he had been consulted; that a small part of this proportion
would be so ambiguous as to leave room for his
prepossessions; and that but a few cases would probably
arise in the life of a Judge under such ambiguous passages.
How much good on the other hand would proceed
from the perspicuity, the conciseness, and the
systematic character which the Code of laws
would receive from the Judiciary talents.
As to the 2nd objection, it either had no weight,
or it applied with equal weight to the Executive
& to the Judiciary revision of the laws.
The maxim on which the objection was founded
required a separation of the Executive as well as
of the Judiciary from the Legislature & from each other.
There would in truth however be no improper mixture
of these distinct powers in the present case.
In England, whence the maxim itself had been drawn,
the Executive had an absolute negative on the laws;
and the supreme tribunal of Justice (the House of Lords)
formed one of the other branches of the Legislature.
In short whether the object of the revisionary power
was to restrain the Legislature from encroaching
on the other co-ordinate Departments or on the
rights of the people at large or from passing laws
unwise in their principle or incorrect in their form,
the utility of annexing the wisdom and weight of the
Judiciary to the Executive seemed incontestable.4
On June 7 Madison spoke on the Senate:
If the motion (of Mr. Dickenson) should be agreed to,
we must either depart from the doctrine of
proportional representation; or admit into
the Senate a very large number of members.
The first is inadmissible, being evidently unjust.
The second is inexpedient.
The use of the Senate is to consist in its proceeding
with more coolness, with more system, & with
more wisdom than the popular branch.
Enlarge their number and you communicate to them
the vices which they are meant to correct.
He differed from Mr. D. who thought that the additional
number would give additional weight to the body.
On the contrary it appeared to him that their weight
would be in an inverse ratio to their number.
The example of the Roman Tribunes was applicable.
They lost their influence and power,
in proportion as their number was augmented.
The reason seemed to be obvious.
They were appointed to take care of the popular
interests & pretensions at Rome because the people
by reason of their numbers could not act in concert,
were liable to fall into factions among themselves,
and to become a prey to their aristocratic adversaries.
The more the representatives of the people therefore
were multiplied, the more they partook of the infirmities
of their constituents, the more liable they became
to be divided among themselves either from their own
indiscretions or the artifices of the opposite faction,
and of course the less capable of fulfilling their trust.
When the weight of a set of men depends
merely on their personal characters,
the greater the number, the greater the weight.
When it depends on the degree of political authority lodged
in them, the smaller the number, the greater the weight.
These considerations might perhaps be combined in the
intended Senate, but the latter was the material one.
Mr. Madison could as little comprehend in what manner
family weight, as desired by Mr. D., would be more
certainly conveyed into the Senate through elections
by the State Legislatures than in some other modes.
The true question was in what mode
the best choice would be made?
If an election by the people, or through any other channel
than the State Legislatures, promised as uncorrupt &
impartial a preference of merit, there could surely be
no necessity for an appointment by those Legislatures.
Nor was it apparent that a more useful check
would be derived through that channel
than from the people through some other.
The great evils complained of were that the State
Legislatures run into schemes of paper money &c.
whenever solicited by the people, & sometimes
without even the sanction of the people.
Their influence then, instead of checking a like propensity
in the National Legislature, may be expected to promote it.
Nothing can be more contradictory than to say that the
National Legislature without a proper check will follow
example of the State Legislatures, & in the same breath
that the State Legislatures are the only proper check.5
On June 11 they accepted Roger Sherman’s compromise for a lower house
of representatives based on population and an upper house with all states being equal.
Yet Southerners rejected his changing the Confederation’s “three-fifths rule”
that counted five slaves as equal to three whites who were called “free inhabitants.”
During the Confederation this had been devised
to reduce the tax burden on the slave states.
Benjamin Franklin urged them to consult each other instead of contending,
and James Wilson of Pennsylvania read the elderly Franklin’s speeches to them.
Edmund Randolph on May 29 had presented his Virginia Plan that was
debated, amended, and approved by June 13 as this document:
1. Resolved that it is the opinion of this Committee that
a national government ought to be established consisting
of a Supreme Legislative, Judiciary, and Executive.
2. Resolved that the national Legislature
ought to consist of Two Branches.
3. Resolved that the members of the first branch of the
national Legislature ought to be elected by the People
of the several States for the term of Three years:
to receive fixed stipends, by which they may be
compensated for the devotion of their time to
public service to be paid out of the National Treasury:
to be ineligible to any Office established by a particular State
or under the authority of the United-States (except those
peculiarly belonging to the functions of the first branch)
during the term of service and under the national
government for the space of one year after its expiration.
4. Resolved that the members of the second Branch
of the national Legislature ought to be chosen
by the individual Legislatures:
to be of the age of thirty years at least:
to hold their offices for a term sufficient to ensure
their independence, namely seven years:
to receive fixed stipends by which they may be
compensated for the devotion of their time to public
service—to be paid out of the National Treasury
to be ineligible to any office established by a particular
State or under the authority of the United States (except
those peculiarly belonging to the functions of the second
branch) during the term of service, and under the national
government for the space of one year after its expiration.
5. Resolved that each branch ought to possess
the right of originating acts.
6. Resolved that the national Legislature ought to be
empowered to enjoy the legislative rights vested in
Congress by the confederation—and moreover to legislate
in all cases to which the separate States are incompetent:
or in which the harmony of the United States may be
interrupted by the exercise of individual legislation:
to negative all laws passed by the several States
contravening, in the opinion of the national Legislature
the articles of union, or any treaties subsisting
under the authority of the union.
7. Resolved that the right of suffrage in the first branch of
the national Legislature ought not to be according to the rule
established in the Articles of Confederation:
but according to some equitable ratio of representation—
namely in proportion to the whole number of white and
other free citizens and inhabitants of every age, sex, and
condition including those bound to servitude for a term
of years, and three fifths of all other persons not
comprehended in the foregoing description,
except Indians, not paying taxes in each State.
8. Resolved that the right of suffrage in the second branch
of the national Legislature ought to be according to
the rule established for the first.
9. Resolved that a national Executive
be instituted to consist of a single person:
to be chosen by the National Legislature:
for the term of seven years with power to carry into
execution the national Laws, to appoint to Offices in cases
not otherwise provided for to be ineligible a second time,
and to be removable on impeachment and conviction of
malpractice or neglect of duty:
to receive a fixed stipend by which he may be
compensated for the devotion of his time to public
service to be paid out of the national Treasury.
10. Resolved that the national executive shall have
a right to negative any legislative act:
which shall not be afterwards passed unless by two-third
parts of each branch of the national Legislature.
11. Resolved that a national Judiciary be established to
consist of One Supreme Tribunal.
The Judges of which to be appointed by
the second Branch of the National Legislature:
to hold their offices during good behavior to receive,
punctually at stated times a fixed compensation
for their services in which no increase or diminution
shall be made so as to affect the persons actually in office
at the time of such increase or diminution.
12. Resolved that the national Legislature be
empowered to appoint inferior Tribunals.
13. Resolved that the jurisdiction of the national
Judiciary shall extend to cases which respect the
collection of the national revenue:
impeachments of any national officers and questions
which involve the national peace and harmony.
14. Resolved that provision ought to be made
for the admission of States, lawfully arising within
the limits of the United States, whether from a
voluntary junction of government and territory,
or otherwise with the consent of a number of voices
in the national Legislature less than the whole.
15. Resolved that provision ought to be made for the
continuance of Congress and their authorities until a given
day after the reform of the articles of Union shall be
adopted; and for the completion of all their engagements.
16. Resolved that a republican constitution
and its existing laws ought to be guaranteed
to each State by the United States.
17. Resolved that provision ought to be made
for the amendment of the articles of Union
whensoever it shall seem necessary.
18. Resolved that the Legislative, Executive,
and Judiciary powers within the several States ought
to be bound by oath to support the articles of Union.
19. Resolved that the amendments, which shall be offered
to the Confederation by the Convention, ought at a proper
time or times, after the approbation of Congress to be
submitted to an assembly or assemblies of representatives,
recommended by the several Legislatures, to be expressly
chosen by the People to consider and decide thereon.6
The delegates took June 14 off so that New Jersey’s
William Paterson could prepare their plan for state equality.
The next day Paterson suggested several reforms to the Articles of Confederation.
When the convention met again on Monday June 18,
Hamilton spoke for more than five hours on a strong centralized government.
On June 19 Madison made a long speech criticizing the New Jersey plan
presented by Mr. Patterson, and that plan would be rejected for several reasons.
On June 26 Madison discussed the Senate terms.
In order to judge of the form to be given
to this institution, it will be proper to take
a view of the ends to be served by it.
These were first to protect the people against their rulers:
secondly to protect the people against the transient
impressions into which they themselves might be led.
A people deliberating in a temperate moment
and with the experience of other nations before them,
on the plan of Government most likely to secure their
happiness would first be aware that those charged
with the public happiness might betray their trust.
An obvious precaution against this danger would be
to divide the trust between different bodies of men,
who might watch & check each other.
In this they would be governed by the same prudence
which has prevailed in organizing the subordinate
departments of Government, where all business
liable to abuses is made to pass through separate hands,
the one being a check on the other.
It would next occur to such a people that they
themselves were liable to temporary errors through
want of information as to their true interest, and that men
chosen for a short term & employed but a small portion
of that in public affairs might err from the same cause.
This reflection would naturally suggest that the
Government be so constituted, as that one of its
branches might have an opportunity of acquiring
a competent knowledge of the public interests.
Another reflection equally becoming a people on
such an occasion would be that they themselves,
as well as a numerous body of Representatives,
were liable to err also from fickleness and passion.
A necessary fence against this danger would be
to select a portion of enlightened citizens,
whose limited number and firmness might
seasonably interpose against impetuous counsels.
It ought finally to occur to a people deliberating
on a Government for themselves, that as different
interests necessarily result from the liberty meant
to be secured, the major interest might under sudden
impulses be tempted to commit injustice on the minority.
In all civilized Countries the people fall into different
classes having a real or supposed difference of interests.
There will be creditors & debtors, farmers,
merchants & manufacturers.
There will be particularly the distinction of rich & poor.
It was true as had been observed (by Mr. Pinkney)
we had not among us those hereditary distinctions,
of rank which were a great source of the contests
in the ancient Governments as well as the modern
States of Europe, nor those extremes of wealth
or poverty which characterize the latter.
We cannot however be regarded even at this time,
as one homogeneous mass in which everything that
affects a part will affect in the same manner the whole.
In framing a system which we wish to last for ages,
we should not lose sight of
the changes which ages will produce.
An increase of population will of necessity
increase the proportion of those who will labor
under all the hardships of life & secretly sigh
for a more equal distribution of its blessings.
These may in time outnumber those who
are placed above the feelings of indigence.
According to the equal laws of suffrage,
the power will slide into the hands of the former.
No agrarian attempts have yet been made in this Country,
but symptoms of a leveling spirit, as we have understood,
have sufficiently appeared in certain quarters
to give notice of the future danger.
How is this danger to be guarded against
on republican principles?
How is the danger in all cases of interested coalitions
to oppress the minority to be guarded against?
Among other means by the establishment of a body in the
Government sufficiently respectable for its wisdom & virtue,
to aid on such emergencies, the preponderance of justice
by throwing its weight into that scale.
Such being the objects of the second branch
in the proposed Government he thought
a considerable duration ought to be given to it.
He did not conceive that the term of nine years
could threaten any real danger; but in pursuing
his particular ideas on the subject, he should require
that the long term allowed to the 2nd branch should
not commence till such a period of life, as would
render a perpetual disqualification to be re-elected
little inconvenient either in a public or private view.
He observed that as it was more than probable we were
now digesting a plan which in its operation would decide
forever the fate of Republican Government we ought not
only to provide every guard to liberty that its preservation
could require, but be equally careful to supply the defects
which our own experience had particularly pointed out.7
Madison on June 28 was not “convinced that the rule contended for
was just nor necessary for the safety of the small states against the large states.”
He advocated representative government.
He asked,
Why are Counties of the same states
represented in proportion to their numbers?
Is it because the representatives are
chosen by the people themselves?
So will be the representatives in the National Legislature.
Is it because, the larger have more
at stake than the smaller?
The case will be the same with the larger & smaller States.
Is it because the laws are to operate
immediately on their persons & properties?
The same is the case in some degree as the Articles of
Confederation stand; the same will be the case in a far
greater degree under the plan proposed to be substituted.
In the cases of captures, of piracies, and of offences
in a federal army, the property & persons of
individuals depend on the laws of Congress.
By the plan proposed a complete power of taxation,
the highest prerogative of supremacy is proposed
to be vested in the national Government.
Many other powers are added which assimilate
it to the Government of individual States.
The negative proposed on the State laws will make it an
essential branch of the State Legislatures & of course will
require that it should be exercised by a body established on
like principles with the other branches of those Legislatures.
That it is not necessary to secure the small States against
the large ones he conceived to be equally obvious:
Was a combination of the large ones dreaded?
This must arise either from some interest common
to Virginia, Massachusetts & Pennsylvania &
distinguishing them from the other States or from
the mere circumstance of similarity of size.
Did any such common interest exist?
In point of situation they could not have been more
effectually separated from each other by the
most jealous citizen of the most jealous State.
In point of manners, Religion, and the other
circumstances which sometimes beget affection
between different communities, they were
not more assimilated than the other States.
In point of the staple productions they were as
dissimilar as any three other States in the Union.
The Staple of Massachusetts was fish,
of Pennsylvania flour, of Virginia Tobacco.
Was a Combination to be apprehended from
the mere circumstance of equality of size?
Experience suggested no such danger.
The journals of Congress did not present any peculiar
association of these States in the votes recorded.
It had never been seen that different Counties in the same
State, conformable in extent but disagreeing in other
circumstances, betrayed a propensity to such combinations.
Experience rather taught a contrary lesson.
Among individuals of superior eminence & weight in Society
rivalries were much more frequent than coalitions.
Among independent nations, pre-eminent over
their neighbors, the same remark was verified.
Carthage & Rome tore one another to pieces
instead of uniting their forces to devour
the weaker nations of the Earth.
The Houses of Austria & France were hostile as long as
they remained the greatest powers of Europe.
England & France have succeeded
to the pre-eminence & to the enmity.
To this principle we owe perhaps our liberty.
A coalition between those powers
would have been fatal to us.
Among the principal members of ancient
& modern confederacies, we find the
same effect from the same cause.
The contentions, not the Coalitions of Sparta,
Athens & Thebes, proved fatal to the smaller
members of the Amphyctionic Confederacy.
The contentions, not the combinations of Prussia & Austria,
have distracted & oppressed the Germanic empire.
Were the large States formidable
singly to their smaller neighbors?
On this supposition the latter ought to wish for
such a general Government as will operate with
equal energy on the former as on themselves.
The more lax the band, the more liberty the larger
will have to avail themselves of their superior force.
Here again Experience was an instructive monitor.
What is the situation of the weak compared with the strong
in those stages of Civilization in which the violence of
individuals is least controlled by an efficient Government?
The Heroic period of ancient Greece,
the feudal licentiousness of the middle ages of Europe,
the existing condition of the American Savages,
answer this question.
What is the situation of the minor sovereigns
in the great society of independent nations,
in which the more powerful are under no control
but the nominal authority of the law of Nations?
Is not the danger to the former exactly
in proportion to their weakness?
But there are cases still more in point.
What was the condition of the weaker members
of the Amphyctionic Confederacy?
Plutarch (Life of Themistocles) will inform us
that it happened but too often that the strongest
cities corrupted & awed the weaker, and that
Judgment went in favor of the more powerful party.
What is the condition of the lesser states
in the German Confederacy?
We all know that they are exceedingly trampled upon;
and that they owe their safety as far as they enjoy it,
partly to their enlisting themselves, under the
rival banners of the pre-eminent members,
partly to alliances with neighboring Princes
which the Constitution of the Empire does not prohibit.
What is the state of things in the
lax system of the Dutch Confederacy?
Holland contains about ½ the People,
supplies about ½ of the money, and by her influence
silently & indirectly governs the whole republic.
In a word, the two extremes before us are a perfect
separation & a perfect incorporation of the 13 States.
In the first case they would be independent nations
subject to no law but the law of nations.
In the last they would be mere counties of one
entire republic, subject to one common law.
In the first case the smaller States would
have everything to fear from the larger.
In the last they would have nothing to fear.
The true policy of the small States therefore lies in
promoting those principles & that form of Government which
will most approximate the States to the condition of counties.
Another consideration may be added.
If the General Government be feeble, the large States
distrusting its continuance, and foreseeing that their
importance & security may depend on their own size
& strength, will never submit to a partition.
Give to the General Government sufficient energy
& permanency, & you remove the objection.
Gradual partitions of the large & junctions of the small
States will be facilitated, and time may effect that
equalization, which is wished for by the small States now,
but can never be accomplished at once.8
Madison on June 29 spoke on the danger of dissolution.
Mr. Madison agreed with Doctor Johnson that
the mixed nature of the Government ought to be
kept in view but thought too much stress was laid
on the rank of the States as political societies.
There was a gradation he observed from the smallest
corporation with the most limited powers to the
largest empire with the most perfect sovereignty.
He pointed out the limitations on the sovereignty of
the States, as now confederated their laws in relation
to the paramount law of the Confederacy were analogous
to that of bye laws to the supreme law within a State.
Under the proposed Government the Powers
of the States will be much farther reduced.
According to the views of every member,
the General Government will have powers far
beyond those exercised by the British Parliament,
when the states were part of the British Empire.
It will in particular have the power without the
consent of the state Legislatures to levy money
directly on the people themselves; and therefore
not to divest such unequal portions of the people as
composed the several States, of an equal voice, would
subject the system to the reproaches & evils which have
resulted from the vicious representation in Great Britain.
He entreated the gentlemen representing the small States
to renounce a principle which was confessedly unjust,
which could never be admitted, & if admitted must infuse
mortality into a Constitution which we wished to last forever.
He prayed them to ponder well the consequences
of suffering the Confederacy to go to pieces.
It had been said that the want of energy in
the large states would be a security to the small.
It was forgotten that this want of energy
proceeded from the supposed security
of the States against all external danger.
Let each state depend on itself for its security & let
apprehensions arise of danger from distant powers
or from neighboring states, & the languishing condition
of all the states, large as well as small, would soon be
transformed into vigorous & high-toned Governments.
His great fear was that their Governments would
then have too much energy, that these might not
only be formidable in the large to the small States,
but fatal to the internal liberty of all.
The same causes which have rendered the old world
the Theatre of incessant wars & have banished liberty from
the face of it would soon produce the same effects here.
The weakness & jealousy of the small States would
quickly introduce some regular military force against
sudden danger from their powerful neighbors.
The example would be followed by others
and would soon become universal.
In time of actual war great discretionary powers
are constantly given to the Executive Magistrate.
Constant apprehension of war has the same tendency
to render the head too large for the body.
A standing military force with an overgrown Executive
will not long be safe companions to liberty.
The means of defense against foreign danger
have been always the instruments of tyranny at home.
Among the Romans it was a standing maxim to excite a war,
whenever a revolt was apprehended.
Throughout all Europe, the armies kept up under
the pretext of defending, have enslaved the people.
It is perhaps questionable, whether the best concerted
system of Absolute power in Europe could maintain itself,
in a situation, where no alarms of external danger
could tame the people to the domestic yoke.
The insular situation of Great Britain was the principal cause
of her being an exception to the general fate of Europe.
It has rendered less defense necessary and
admitted a kind of defense which could not
be used for the purpose of oppression.
These consequences he conceived ought to be apprehended
whether the States should run into a total separation from
each other or should enter into partial confederacies.
Either event would be truly deplorable; & those
who might be accessary to either, could never be
forgiven by their Country nor by themselves.9
On June 30 Madison made this speech on the divisions between the states.
Mr. Madison did justice to the able & close
reasoning of Mr. Ellsworth but must observe
that it did not always accord with itself.
On another occasion the large States were described by him
as the Aristocratic States, ready to oppress the small.
Now the small are the House of Lords requiring a negative
to defend them against the more numerous commons.
Mr. Ellsworth had also erred in saying that no instance
had existed in which confederated States had not
retained to themselves a perfect equality of suffrage.
Passing over the German system in which the King of
Prussia has nine voices, he reminded Mr. Ellsworth
of the Lycian confederacy in which the component
members had votes proportioned to their importance
and which Montesquieu recommends as the fittest
model for that form of Government.
Had the fact been as stated by Mr. Ellsworth, it would
have been of little avail to him, or rather would have
strengthened the arguments against him; the History & fate
of the several confederacies, modern as well as Ancient,
demonstrating some radical vice in their structure.
In reply to the appeal of Mr. Ellsworth to the faith plighted
in the existing federal compact, he remarked that the
party claiming from others an adherence to a common
engagement ought at least to be guiltless itself of a violation.
Of all the States however Connecticut
was perhaps least able to urge this plea.
Besides the various omissions to perform the stipulated acts
from which no State was free, the Legislature of that State
had by a pretty recent vote positively refused to pass
a law for complying with the Requisitions of Congress
and had transmitted a copy of the vote to Congress.
It was urged, he said, continually that an equality of votes in
the 2nd branch was not only necessary to secure the small,
but would be perfectly safe to the large ones whose
majority in the 1st branch was an effectual bulwark.
But notwithstanding this apparent defense, the majority
of States might still injure the majority of people.
1. they could obstruct the wishes
and interests of the majority.
2. they could extort measures repugnant
to the wishes & interest of the Majority.
3. they could impose measures adverse thereto;
as the 2nd branch will probably exercise some
great powers in which the 1st will not participate.
He admitted that every peculiar interest, whether
in any class of citizens or any description of States,
ought to be secured as far as possible.
Wherever there is danger of attack there ought
be given a constitutional power of defense.
But he contended that the States were divided into
different interests not by their difference of size,
but by other circumstances; the most material
of which resulted partly from climate, but principally
from the effects of their having or not having slaves.
These two causes concurred in forming the great
division of interests in the United States.
It did not lie between the large & small States.
It lay between the Northern & Southern,
and if any defensive power were necessary,
it ought to be mutually given to these two interests.
He was so strongly impressed with this important truth
that he had been casting about in his mind for
some expedient that would answer the purpose.
The one which had occurred was that instead of
proportioning the votes of the States in both branches,
to their respective numbers of inhabitants computing the
slaves in the ratio of 5 to 3, they should be represented in
one branch according to the number of free inhabitants only;
and in the other according to the whole number
counting the slaves as if free.
By this arrangement the Southern Scale would have the
advantage in one House, and the Northern in the other.
He had been restrained from proposing this
expedient by two considerations: one was his
unwillingness to urge any diversity of interests
on an occasion where it is but too apt to arise of itself.
The other was, the inequality of powers that
must be vested in the two branches, and which
would destroy the equilibrium of interests.10
On July 2 a committee was formed with one delegate from each state
to resolve differences on representation in the two branches of the legislature.
On July 5 they proposed proportional representation in the House with
exclusive control on money bills, and they advised
equal representation of the states in the Senate.
On that day Madison recorded this response:
Mr. Madison expressed his apprehensions that if the
proper foundation of Government was destroyed by
substituting an equal in place of a proportional
Representation, no proper superstructure would be raised.
If the small States really wish for a Government armed
with the powers necessary to secure their liberties,
and to enforce obedience on the larger members
as well as on themselves he could not help thinking
them extremely mistaken in their means.
He reminded them of the consequences of laying
the existing confederation on improper principles.
All the principal parties to its compilation, joined immediately
in mutilating & fettering the Government in such a manner
that it has disappointed every hope placed on it.
He appealed to the doctrine & arguments
used by themselves on a former occasion.
It had been very properly observed by (Mr. Patterson)
that Representation was an expedient by which the
meeting of the people themselves was rendered
unnecessary; and that the representatives ought
therefore to bear a proportion to the votes which their
constituents if convened, would respectively have.
Was not this remark as applicable to one branch
of the Representation as to the other?
But it had been said that the Government would
in its operation be partly federal, partly national;
that although in the latter respect the Representatives of the
people ought to be in proportion to the people: yet in the
former it ought to be according to the number of States.
If there was any solidity in this distinction he was ready
to abide by it; if there was none, it ought to be abandoned.
In all cases where the General Government
is to act on the people, let the people
be represented, and the votes be proportional.
In all cases where the Government is to act on the States
as such, in like manner as Congress now act on them,
let the States be represented & the votes be equal.
This was the true ground of compromise
if there was any ground at all.
But he denied that there was any ground.
He called for a single instance in which the General
Government was not to operate on the people individually.
The practicability of making laws with coercive
sanctions for the States as Political bodies
had been exploded on all hands.
He observed that the people of the large States
would in some way or other secure to themselves
a weight proportioned to the importance
accruing from their superior numbers.
If they could not effect it by a proportional representation
in the Government they would probably accede to no
Government which did not in great measure depend
for its efficacy on their voluntary cooperation,
in which case they would indirectly secure their object.
The existing confederacy proved that where
the Acts of the General Government were to be
executed by the particular Governments the latter
had a weight in proportion to their importance.
No one would say that
either in Congress or out of Congress.
Delaware had equal weight with Pennsylvania.
If the latter was to supply ten times as much money
as the former, and no compulsion could be used,
it was of ten times more importance,
that she should voluntarily furnish the supply.
In the Dutch confederacy the votes
of the Provinces were equal.
But Holland, which supplies about half the money,
governs the whole republic.
He enumerated the objections against an equality
of votes in the 2nd branch, notwithstanding
the proportional representation in the first.
1. the minority could negative the will
of the majority of the people.
2. they could extort measures by making them
a condition of their assent to other necessary measures.
3. they could obtrude measures on the majority by virtue of
the peculiar powers which would be vested in the Senate.
4. the evil instead of being cured by time, would increase
with every new State that should be admitted,
as they must all be admitted on the principle of equality.
5. the perpetuity it would give to the preponderance
of the Northern against the Southern Scale
was a serious consideration.
It seemed now to be pretty well understood that
the real difference of interests lay,
not between the large & small
but between the Northern & Southern States.
The institution of slavery & its consequences
formed the line of discrimination.
There were 5 States on the South,
8 on the Northern side of this line.
Should a proportional representation take place,
it was true, the North side would still outnumber the other:
but not in the same degree at this time,
and every day would tend towards an equilibrium.12
Madison on July 19 briefly spoke on why he was opposed to the
legislature appointing the executive who he said should be independent.
On July 20 he suggested that impeachment of the executive is “indispensable”
as a safeguard against “incapacity, negligence or perfidy.”
On July 25 he discussed how the people could choose electors,
and they would meet and elect the executive.
On August 7 Madison stood up for suffrage saying,
The right of suffrage is certainly one of the
fundamental articles of republican Government, and
ought not to be left to be regulated by the Legislature.
A gradual abridgment of this right has been
the mode in which Aristocracies have been
built on the ruins of popular forms.
Whether the Constitutional qualification ought to be a
freehold, would with him depend much on the probable
reception such a change would meet with in States where
the right was now exercised by every description of people.
In several of the States a freehold was now the qualification.
Viewing the subject in its merits alone,
the freeholders of the Country would be
the safest depositories of Republican liberty.
In future times a great majority of the people will
not only be without land but any other sort of property.
These will either combine under the influence of their
common situation: in which case, the rights of property
& the public liberty will not be secure in their hands:
or which is more probable, they will become
the tools of opulence & ambition, in which case
there will be equal danger on another side.
The example of England had been
misconceived (by Col. Mason).
A very small proportion of the Representatives
are there chosen by freeholders.
The greatest part are chosen by the Cities & boroughs,
in many of which the qualification of suffrage is
as low as it is in any one of the United States,
and it was in the boroughs & Cities rather than the Counties,
that bribery most prevailed, & the influence of the Crown
on elections was most dangerously exerted.13
On August 8 Madison advised that making 40,000 inhabitants
the perpetual rule for representation would be a mistake because
of increasing population in the future.
This was quite prophetic.
After the 2020 Census the average number of persons
in the House districts became 761,169.
This was the number needed to maintain the number
of Representatives in the House at 435.
On August 9 he spoke on controlling Congressional elections.
He also opposed requiring that all money bills
originate in the House of Representatives.
The necessity of a General Government supposes
that the State Legislatures will sometimes fail or
refuse to consult the common interest at the
expense of their local convenience or prejudices.
The policy of referring the appointment of the
House of Representatives to the people and not
to the Legislatures of the States, supposes that the
result will be somewhat influenced by the mode.
This view of the question seems to decide
that the Legislatures of the States ought not
to have the uncontrolled right of regulating
the times, places & manner of holding elections.
These were words of great latitude.
It was impossible to foresee all the abuses
that might be made of the discretionary power.
Whether the electors should vote by ballot or viva voce,
should assemble at this place or that place;
should be divided into districts or all meet at one place,
should all vote for all the representatives;
or all in a district vote for a number allotted to the district;
these & many other points would depend on the
Legislatures and might materially affect the appointments.
Whenever the State Legislatures had a favorite measure
to carry, they would take care so to mold their regulations
as to favor the candidates they wished to succeed.
Besides, the inequality of the Representation in the
Legislatures of particular States, would produce a like
inequality in their representation in the National Legislature,
as it was presumable that the Counties having the power in
the former case would secure it to themselves in the latter.
What danger could there be in giving a
controlling power to the National Legislature?
Of whom was it to consist?
1. of a Senate to be chosen by the State Legislatures.
If the latter therefore could be trusted,
their representatives could not be dangerous.
2. of Representatives elected by the same people
who elect the State Legislatures; surely then if
confidence is due to the latter, it must be due to the former.
It seemed as improper in principle, though it might be less
inconvenient in practice, to give to the State Legislatures
this great authority over the election of Representatives
of the people in the General Legislature, as it would be
to give to the latter a like power over the election of
their Representatives in the State Legislatures.14
On August 21 Madison urged the delegates to give
Congress the power to tax exports and imports for revenue.
He said,
As we ought to be governed by national and
permanent views, it is a sufficient argument for
giving the power over exports that a tax, though
it may not be expedient at present, may be so hereafter.
A proper regulation of exports may & probably
will be necessary hereafter, and for the same
purposes as the regulation of imports; viz,
for revenue—domestic manufactures—
and procuring equitable regulations from other nations.
An Embargo may be of absolute necessity,
and can alone be effectuated by the General authority.
The regulation of trade between State and State
cannot effect more than indirectly to hinder a State
from taxing its own exports; by authorizing its Citizens
to carry their commodities freely into a neighboring
State which might decline taxing exports in order
to draw into its channel the trade of its neighbors.
As to the fear of disproportionate burdens on the more
exporting States, it might be remarked that it was agreed
on all hands that the revenue would principally be drawn
from trade, and as only a given revenue would be needed,
it was not material whether all should be drawn wholly
from imports—or half from those and half from exports.
The imports and exports must be
pretty nearly equal in every State—
and relatively the same among the different States.15
On August 25 Madison opposed extending the end
of the slave trade from 1800 to 1808; he was outvoted.
On August 31 Madison proposed state conventions for ratification
because “The people were, in fact, the fountain of all power,
and by resorting to them, all difficulties were got over.”16
On September 7 Madison suggested authorizing two-thirds of the Senate
to make treaties of peace without concurrence of the President because
the President already had much power over war and
should not be allowed “to impede a treaty of peace.”
On September 10 he suggested the process for amending the Constitution
by two-thirds of both houses and ratification by three-quarters of the states.
They finally agreed on a document on September 17.
Madison 44 years later praised Gouverneur Morris for writing
this brilliant Preamble to the United States Constitution:
We the People of the United States, in Order to
form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the
common defense, promote the general Welfare,
and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this
Constitution for the United States of America.
In a letter to George Washington on 18 October 1787 Madison wrote this:
The great mass of suits in every State lie between Citizen
& Citizen and relate to matters not of federal cognizance.
Notwithstanding the stress laid on the necessity of a Council
to the President I strongly suspect, though I was a friend
to the thing, that if such a one as Col. Mason proposed,
had been established, and the power of the Senate
in appointments to offices transferred to it, that
as great a clamor would have been heard from
some quarters which in general echo his Objections.
What can he mean by saying that the Common law
is not secured by the new constitution,
though it has been adopted by the State Constitutions.
The common law is nothing more than the unwritten law,
and is left by all the constitutions
equally liable to legislative alterations.
I am not sure that any notice is particularly
taken of it in the Constitutions of the States.
If there is, nothing more is provided than a general
declaration that it shall continue along with other
branches of law to be in force till legally changed.
The Constitution of Virginia drawn up by Col. Mason
himself is absolutely silent on the subject.
An ordinance passed during the same Session declared
the Common law as heretofore & all Statutes of prior
date to the 4 of James I to be still the law of the land,
merely to obviate pretexts that the separation from
Great Britain threw us into a State of nature
and abolished all civil rights and Obligations.
Since the Revolution every State has made
great inroads & with great propriety in many
instances on this monarchical code.
The “revisal of the laws” by a Committee
of which Col. Mason was a member, though
not an acting one, abounds with such innovations.
The abolition of the right of primogeniture, which I am sure
Col. Mason does not disapprove, falls under this head.
What could the Convention have done?
If they had in general terms declared the Common law
to be in force, they would have broken in upon the
legal Code of every State in the most material points:
they would have done more; they would have brought
over from Great Britain a thousand heterogeneous &
antirepublican doctrines, and even the ecclesiastical
Hierarchy itself, for that is a part of the Common law.
If they had undertaken a discrimination, they must have
formed a digest of laws instead of a Constitution.
This objection surely was not brought forward
in the Convention, or it would have been placed
in such a light that a repetition of it out of doors
would scarcely have been hazarded.
Were it allowed the weight which Col. Mason may suppose
it deserves, it would remain to be decided whether it be
candid to arraign the Convention for omissions which
were never suggested to them—or prudent to vindicate
the dissent by reasons which either were not previously
thought of, or must have been willfully concealed.
But I am running into a comment as prolix,
as it is out of place.
I find by a letter from the Chancellor (Mr. Pendleton)
that he views the act of the Convention in its true light
and gives it his unequivocal approbation.
His support will have great effect.
The accounts we have here of some other
respectable characters vary considerably.
Much will depend on Mr. Henry, and I am glad
to find by your letter that his favorable decision
on the subject may yet be hoped for.
The Newspapers here begin to teem with vehement
& virulent calumniations of the proposed Government.
As they are chiefly borrowed from the Pennsylvania papers,
you see them of course.
The reports however from different quarters
continue to be rather flattering.17
James Madison in a long letter on 24 October 1787
to Thomas Jefferson in France wrote this:
You will herewith receive the result of the Convention,
which continued its Session till the 17th of September.
I take the liberty of making some observations
on the subject which will help to make up a letter,
if they should answer no other purpose.
It appeared to be the sincere and unanimous wish of the
Convention to cherish and preserve the Union of the States.
No proposition was made, no suggestion was thrown out,
in favor of a partition of the Empire
into two or more Confederacies.
It was generally agreed that the objects of the Union
could not be secured by any system founded on the
principle of a confederation of sovereign States.
A voluntary observance of the federal law
by all the members, could never be hoped for.
A compulsive one could evidently never be reduced
to practice, and if it could, involved equal calamities
to the innocent & the guilty, the necessity of a military
force both obnoxious & dangerous, and in general,
a scene resembling much more a civil war,
than the administration of a regular Government.
Hence was embraced the alternative of a Government
which instead of operating, on the States, should
operate without their intervention on the individuals
composing them: and hence the change in the
principle and proportion of representation.
This ground-work being laid, the great objects
which presented themselves were
1. to unite a proper energy in the Executive and
a proper stability in the Legislative departments,
with the essential characters of Republican Government.
2. to draw a line of demarcation which would give to
the General Government every power requisite for
general purposes, and leave to the States every power
which might be most beneficially administered by them.
3. to provide for the different interests
of different parts of the Union.
4. to adjust the clashing pretensions
of the large and small States.
Each of these objects was pregnant with difficulties.
The whole of them together formed a task more
difficult than can be well conceived by those
who were not concerned in the execution of it.
Adding to these considerations the natural diversity of
human opinions on all new and complicated subjects,
it is impossible to consider the degree of concord
which ultimately prevailed as less than a miracle.
The first of these objects as it respects the Executive,
was peculiarly embarrassing.
On the question whether it should consist of
a single person, or a plurality of co-ordinate members,
on the mode of appointment, on the duration in office,
on the degree of power, on the re-eligibility,
tedious and reiterated discussions took place.
The plurality of co-ordinate members
had finally but few advocates.
Governor Randolph was at the head of them.
The modes of appointment proposed were various, as by
the people at large—by electors chosen by the people—
by the Executives of the States—by the Congress, some
preferring a joint ballot of the two Houses—some a separate
concurrent ballot allowing to each a negative on the other
house—some a nomination of several candidates by one
House, out of whom a choice should be made by the other.
Several other modifications were started.
The expedient at length adopted seemed to give
pretty general satisfaction to the members.
As to the duration in office, a few would have preferred
a tenure during good behavior—a considerable
number would have done so, in case an easy &
effectual removal by impeachment could be settled.
It was much agitated whether a long term, seven years for
example, with a subsequent & perpetual ineligibility, or a
short term with a capacity to be re-elected, should be fixed.
In favor of the first opinion were urged the danger
of a gradual degeneracy of re-elections from time to time,
into first a life and then a hereditary tenure, and the
favorable effect of an incapacity to be reappointed,
on the independent exercise of the Executive authority.
On the other side it was contended that the prospect of
necessary degradation, would discourage the most dignified
characters from aspiring to the office, would take away the
principal motive to the faithful discharge of its duties—the
hope of being rewarded with a reappointment, would
stimulate ambition to violent efforts for holding over
the constitutional term—and instead of producing an
independent administration, and a firmer defense of
the constitutional rights of the department, would render
the officer more indifferent to the importance of a place
which he would soon be obliged to quit forever,
and more ready to yield to the encroachments of the
Legislature of which he might again be a member.
The questions concerning the degree of power
turned chiefly on the appointment to offices
and the control on the Legislature.
An absolute appointment to all offices—to some offices—
to no offices, formed the scale of opinions on the first point.
On the second, some contended for an absolute negative,
as the only possible mean of reducing to practice
the theory of a free Government which forbids
a mixture of the Legislative & Executive powers.
Others would be content with a revisionary power
to be overruled by three fourths of both Houses.
It was warmly urged that the judiciary department
should be associated in the revision.
The idea of some was that a separate revision
should be given to the two departments—
that if either objected two thirds;
if both three fourths should be necessary to overrule.
In forming the Senate, the great anchor of the
Government, the questions as they came within
the first object turned mostly on the mode
of appointment and the duration of it.
The different modes proposed were,
1. by the House of Representatives
2. by the Executive,
3. by electors chosen by the people for the purpose.
4. by the State Legislatures.
On the point of duration, the propositions descended
from good-behavior to four years, through the
intermediate terms of nine, seven, six, & five years.
The election of the other branch was first determined
to be triennial, and afterwards reduced to biennial.
The second object, the due partition of power,
between the General & local Governments,
was perhaps of all, the most nice and difficult.
A few contended for an entire abolition of the States;
some for indefinite power of Legislation in the Congress,
with a negative on the laws of the States: some for
such a power without a negative: some for a
limited power of legislation, with such a negative: the
majority finally for a limited power without the negative.
The question with regard to the Negative
underwent repeated discussions and
was finally rejected by a bare majority.
As I formerly intimated to you, my opinion
in favor of this ingredient, I will take this occasion
of explaining myself on the subject.
Such a check on the States appears to me necessary
1. to prevent encroachments on the General authority.
2. to prevent instability and injustice
in the legislation of the States.
1. Without such a check in the whole over the parts,
our system involves the evil of imperia in imperio.
If a complete supremacy somewhere is not necessary
in every Society, a controlling power at least is so,
by which the general authority may be defended
against encroachments of the subordinate authorities,
and by which the latter may be restrained
from encroachments on each other.
If the supremacy of the British Parliament is not necessary
as has been contended, for the harmony of that Empire;
it is evident I think that without the royal negative
or some equivalent control,
the unity of the system would be destroyed.
The want of some such provision seems
to have been mortal to the ancient Confederacies
and to be the disease of the modern.
Of the Lycian Confederacy little is known.
That of the Amphyctions is well known to have been
rendered of little use while it lasted, and in the end
to have been destroyed by the predominance
of the local over the federal authority.
The same observation may be made on the authority
of Polybius, with regard to the Achaean League.
The Helvetic System scarcely amounts to a Confederacy,
and is distinguished by too many peculiarities
to be a ground of comparison.
The case of the United Netherlands is in point.
The authority of a Statholder, the influence of a Standing
army, the common interest in the conquered possessions,
the pressure of surrounding danger, the guarantee of
foreign powers, are not sufficient to secure the authority
and interests of the generality, against the antifederal
tendency of the provincial sovereignties.
The German Empire is another example.
A Hereditary chief with vast independent resources
of wealth and power, a federal Diet, with ample
parchment authority, a regular Judiciary establishment,
the influence of the neighborhood of great & formidable
Nations have been found unable either
to maintain the subordination of the members or
to prevent their mutual contests & encroachments.
Still more to the purpose is our own experience
both during the war and since the peace.
Encroachments of the States on the general authority,
sacrifices of national to local interests,
interferences of the measures of different States,
form a great part of the history of our political system.
It may be said that the new Constitution is founded on
different principles and will have a different operation.
I admit the difference to be material.
It presents the aspect rather of a feudal system
of republics, if such a phrase may be used,
than of a Confederacy of independent States.
And what has been the progress and event
of the feudal Constitutions?
In all of them a continual struggle between the head and
the inferior members until a final victory has been gained
in some instances by one, in others, by the other of them.
In one respect indeed there is a remarkable
variance between the two cases.
In the feudal system the sovereign, though limited,
was independent; and having no particular sympathy
of interests with the great Barons, his ambition had
as full play as theirs in the mutual projects of usurpation.
In the American Constitution the general authority
will be derived entirely from the subordinate authorities.
The Senate will represent the States in their
political capacity; the other House will represent
the people of the States in their individual capacity.
The former will be accountable to their constituents
at moderate, the latter at short periods.
The President also derives his appointment from the States
and is periodically accountable to them.
This dependence of the General on the local authorities
seems effectually to guard the latter against any dangerous
encroachments of the former: while the latter,
within their respective limits, will be continually sensible
of the abridgment of their power, and be stimulated
by ambition to resume the surrendered portion of it.
We find the representatives of Counties and
corporations in the Legislatures of the States much
more disposed to sacrifice the aggregate interest,
and even authority to the local views of their
Constituents: than the latter to the former.
I mean not by these remarks to insinuate that an
esprit de corps will not exist in the national Government
or that opportunities may not occur of extending
its jurisdiction in some points.
I mean only that the danger of encroachments is much
greater from the other side, and that the impossibility of
dividing powers of legislation in such a manner as to be
free from different constructions by different interests,
or even from ambiguity in the judgment of the impartial,
requires some such expedient as I contend for.
Many illustrations might be given of this impossibility.
How long has it taken to fix, and how imperfectly is yet fixed
the legislative power of corporations, though that power
is subordinate in the most complete manner?
The line of distinction between the power of regulating
trade and that of drawing revenue from it, which was
once considered as the barrier of our liberties, was found
on fair discussion to be absolutely undefinable.
No distinction seems to be more obvious than
that between spiritual and temporal matters.
Yet wherever they have been made objects of Legislation,
they have clashed and contended with each other
till one or the other has gained the supremacy.
Even the boundaries between the Executive,
Legislative & Judiciary powers, though in general
so strongly marked in themselves, consist in
many instances of mere shades of difference.
It may be said that the Judicial authority under our
new system will keep the States within their proper limits,
and supply the place of a negative on their laws.
The answer is that it is more convenient to prevent the
passage of a law than to declare it void after it is passed;
that this will be particularly the case, where the law
aggrieves individuals, who may be unable to support an
appeal against a State to the supreme Judiciary; that a State
which would violate the Legislative rights of the Union,
would not be very ready to obey a Judicial decree in support
of them, and that a recurrence to force, which in the event
of disobedience would be necessary, is an evil which the
new Constitution meant to exclude as far as possible.
2. A constitutional negative on the laws of the States
seems equally necessary to secure individuals
against encroachments on their rights.
The mutability of the laws of the States
is found to be a serious evil.
The injustice of them has been so frequent and so flagrant
as to alarm the most steadfast friends of Republicanism.
I am persuaded I do not err in saying that the evils issuing
from these sources contributed more to that uneasiness
which produced the Convention, and prepared the public
mind for a general reform, than those which accrued to
our national character and interest from the inadequacy
of the Confederation to its immediate objects.
A reform therefore which does not make provision
for private rights must be materially defective.
The restraints against paper emissions and
violations of contracts are not sufficient.
Supposing them to be effectual as far as they go,
they are short of the mark.
Injustice may be effected by such an infinitude
of legislative expedients, that where the disposition
exists it can only be controlled by some provision
which reaches all cases whatsoever.
The partial provision made supposes
the disposition which will evade it.
It may be asked how private rights will be more secure
under the Guardianship of the General Government than
under the State Governments, since they are both founded
on the republican principle which refers the ultimate decision
to the will of the majority, and are distinguished rather
by the extent within which they will operate
than by any material difference in their structure.
A full discussion of this question would, if I mistake not,
unfold the true principles of Republican Government,
and prove in contradiction to the concurrent opinions
of theoretical writers, that this form of Government,
in order to effect its purposes, must operate
not within a small but an extensive sphere.
I will state some of the ideas which
have occurred to me on this subject.
Those who contend for a simple Democracy
or a pure republic, actuated by the sense of the majority,
and operating within narrow limits, assume or
suppose a case which is altogether fictitious.
They found their reasoning on the idea, that the people
composing the Society enjoy not only an equality of
political rights; but that they have all precisely the
same interests and the same feelings in every respect.
Were this in reality the case,
their reasoning would be conclusive.
The interest of the majority would be that of the
minority also; the decisions could only turn on mere
opinion concerning the good of the whole, of which
the major voice would be the safest criterion;
and within a small sphere this voice could be most easily
collected, and the public affairs most accurately managed.
We know however that no Society ever did or
can consist of so homogeneous a mass of Citizens.
In the savage State indeed, an approach is made towards it;
but in that State little or no Government is necessary.
In all civilized Societies
distinctions are various and unavoidable.
A distinction of property results from that
very protection which a free Government gives
to unequal faculties of acquiring it.
There will be rich and poor; creditors and debtors;
a landed interest, a monied interest,
a mercantile interest, a manufacturing interest.
These classes may again be subdivided
according to the different productions of
different situations & soils, & according to
different branches of commerce and of manufactures.
In addition to these natural distinctions,
artificial ones will be founded on accidental
differences in political, religious or other opinions,
or an attachment to the persons of leading individuals.
However erroneous or ridiculous these grounds
of dissention and faction may appear to the
enlightened Statesman or the benevolent philosopher,
the bulk of mankind who are neither Statesmen nor
philosophers will continue to view them in a different light.
It remains then to be enquired whether a majority having
any common interest or feeling any common passion
will find sufficient motives to restrain them
from oppressing the minority.
An individual is never allowed to be a judge
or even a witness in his own cause.
If two individuals are under the bias of interest or enmity
against a third, the rights of the latter could never
be safely referred to the majority of the three.
Will two thousand individuals be less apt to oppress one
thousand, or two hundred thousand, one hundred thousand?
Three motives only can restrain in such cases.
1. a prudent regard to private or partial good, as essentially
involved in the general and permanent good of the whole.
This ought no doubt to be sufficient of itself.
Experience however shows that it has little effect
on individuals and perhaps still less on a collection
of individuals, and least of all on a majority
with the public authority in their hands.
If the former are ready to forget that
honesty is the best policy; the last do more.
They often proceed on the converse of the maxim:
that whatever is politic is honest.
2. respect for character.
This motive is not found sufficient to restrain individuals
from injustice and loses its efficacy in proportion to
the number which is to divide the praise or the blame.
Besides as it has reference to public opinion, which is
that of the majority, the Standard is fixed by those
whose conduct is to be measured by it.
3. Religion.
The inefficacy of this restraint on individuals is well known.
The conduct of every popular Assembly, acting on oath,
the strongest of religious ties, shows that individuals
join without remorse in acts against which
their consciences would revolt, if proposed
to them separately in their closets.
When Indeed Religion is kindled into enthusiasm,
its force like that of other passions is
increased by the sympathy of a multitude.
But enthusiasm is only a temporary state of Religion, and
while it lasts, will hardly be seen with pleasure at the helm.
Even in its coolest state, it has been much oftener
a motive to oppression than a restraint from it.
If then there must be different interests
and parties in Society; and a majority when
united by a common interest or passion,
cannot be restrained from oppressing the minority.
What remedy can be found in a republican Government,
where the majority must ultimately decide, but that
of giving such an extent to its sphere, that no common
interest or passion will be likely to unite a majority
of the whole number in an unjust pursuit?
In a large Society the people are broken into so many
interests and parties that a common sentiment
is less likely to be felt, and the requisite concert
less likely to be formed by a majority of the whole.
The same security seems requisite for the civil
as for the religious rights of individuals.
If the same sect forms a majority and has the power,
other sects will be sure to be depressed.
Divide et impera, the reprobated axiom of tyranny,
is under certain qualifications, the only policy, by which
a republic can be administered on just principles.
It must be observed however that this doctrine
can only hold within a sphere of a mean extent.
As in too small a sphere oppressive combinations
may be too easily formed against the weaker party;
so in too extensive a one, a defensive concert
may be rendered too difficult against the oppression
of those entrusted with the administration.
The great desideratum in Government is, so to modify
the sovereignty as that it may be sufficiently neutral
between different parts of the Society to control one part
from invading the rights of another, and at the same time
sufficiently controlled itself from setting up an interest
adverse to that of the entire Society.
In absolute monarchies the Prince may be tolerably neutral
towards different classes of his subjects but may sacrifice
the happiness of all to his personal ambition or avarice.
In small republics the sovereign will is controlled from
such a sacrifice of the entire Society but is not
sufficiently neutral towards the parts composing it.
In the extended Republic of the United States
the General Government would hold a pretty even balance
between the parties of particular States, and be at
the same time sufficiently restrained by its dependence
on the community from betraying its general interests.
Begging pardon for this immoderate digression I return
to the third object abovementioned, the adjustment of
the different interests of different parts of the Continent.
Some contended for an unlimited power over trade including
exports as well as imports and over slaves as well as
other imports; some for such a power, provided the
concurrence of two-thirds of both Houses were required;
some for such a qualification of the power
with an exemption of exports and slaves,
others for an exemption of exports only.
The result is seen in the Constitution.
South Carolina & Georgia were inflexible
on the point of the slaves.
The remaining object created more embarrassment
and a greater alarm for the issue of the Convention
than all the rest put together.
The little States insisted on retaining their equality
in both branches, unless a complete abolition of the
State Governments should take place;
and they made an equality in the Senate a sine qua non.
The large States on the other hand urged that as the new
Government was to be drawn principally from the people
immediately and was to operate directly on them,
not on the States; and consequently as the States
would lose that importance which is now proportioned
to the importance of their voluntary compliances
with the requisitions of Congress, it was necessary
that the representation in both Houses
should be in proportion to their size.
It ended in the compromise which you will see,
but very much to the dissatisfaction of
several members from the large States.
It will not escape you that three names only
from Virginia are subscribed to the Act.
Mr. Wythe did not return after the death of his lady.
Doctor James McClurg left the Convention
some time before the adjournment.
The Governor and Col. Mason refused to be parties to it.
Mr. Gerry was the only other member who refused.
The objections of the Governor turn principally on the
latitude of the general powers, and on the connection
established between the President and the Senate.
He wished that the plan should be proposed to the States
with liberty to them to suggest alterations which
should all be referred to another general Convention,
to be incorporated into the plan
as far as might be judged expedient.
He was not inveterate in his opposition and grounded
his refusal to subscribe pretty much on his
unwillingness to commit himself, so as not to be
at liberty to be governed by further lights on the subject.
Col. Mason left Philadelphia
in an exceeding ill humor indeed.
A number of little circumstances arising in part from
the impatience which prevailed towards the close of
the business conspired to whet his acrimony.
He returned to Virginia with a fixed disposition
to prevent the adoption of the plan if possible.
He considers the want of a Bill of Rights as a fatal objection.
His other objections are to the substitution of the Senate
in place of an Executive Council & to the powers
vested in that body—to the powers of the Judiciary—
to the Vice President being made President of the Senate—
to the smallness of the number of Representatives—
to the restriction on the States with regard to
ex post facto laws—and most of all probably to the power
of regulating trade by a majority only of each House.
He has some other lesser objections.
Being now under the necessity of justifying his refusal
to sign, he will of course muster every possible one.
His conduct has given great umbrage to the County
of Fairfax and particularly to the Town of Alexandria.
He is already instructed to promote in the Assembly the
calling a Convention and will probably be either not deputed
to the Convention or be tied up by express instructions.
He did not object in general to the powers vested in the
National Government so much as to the modification.
In some respects he admitted that some further powers
would have improved the system.
He acknowledged in particular that a negative
on the State laws and the appointment of the State
Executives ought to be ingredients; but supposed that
the public mind would not now bear them, and that
experience would hereafter produce these amendments.
The final reception which will be given by the people
at large to the proposed System cannot yet be decided.
The Legislature of New Hampshire was sitting when
it reached that State and was well pleased with it.
As far as the sense of the people there has been expressed,
it is equally favorable.
Boston is warm and almost unanimous in embracing it.
The impression on the Country is not yet known.
No symptoms of disapprobation have appeared.
The Legislature of that State is now sitting,
through which the sense of the people at large
will soon be promulged with tolerable certainty.
The paper money faction in Rhode Island is hostile.
The other party zealously attached to it.
Its passage through Connecticut is
likely to be very smooth and easy.
There seems to be less agitation
in this State than anywhere.
The discussion of the subject
seems confined to the newspapers.
The principal characters are known to be friendly.
The Governor’s party which has hitherto been
the popular & most numerous one, is supposed
to be on the opposite side; but considerable
reserve is practiced, of which he sets the example.
New Jersey takes the affirmative side of course.
Meetings of the people are declaring their approbation
and instructing their representatives.
Pennsylvania will be divided.
The City of Philadelphia, the Republican party, the Quakers,
and most of the Germans espouse the Constitution.
Some of the Constitutional leaders,
backed by the western Country will oppose.
An unlucky ferment on the subject in their Assembly
just before its late adjournment has irritated both sides,
particularly the opposition, and by redoubling the
exertions of that party may render the event doubtful.
The voice of Maryland I understand from
pretty good authority is as far as it has been declared,
strongly in favor of the Constitution.
Mr. Chase is an enemy, but the Town of Baltimore
which he now represents, is warmly attached to it
and will shackle him as far as they can.
Mr. William Paca will probably be as usual
in the politics of Chase.
My information from Virginia is as yet extremely imperfect.
I have a letter from General Washington which speaks
favorably of the impression within a circle of some extent;
and another from Chancellor Pendleton which
expresses his full acceptance of the plan
and the popularity of it in his district.
I am told also that Innis and Marshall are patrons of it.
In the opposite scale are Mr. James Mercer,
Mr. R. H. Lee, Doctor Lee and their connections of course,
Mr. Mann Page according to Report, and
most of the Judges & Bar of the general Court.
The part which Mr. Henry will take is unknown here.
Much will depend on it.
I had taken it for granted from a variety of
circumstances that he would be in the opposition,
and I still think that will be the case.
There are reports however
which favor a contrary supposition.
From the States South of Virginia nothing has been heard.
As the deputation from South Carolina consisted of
some of its weightiest characters, who have returned
unanimously zealous in favor of the Constitution,
it is probable that State will readily embrace it.
It is not less probable that North Carolina will follow the
example unless that of Virginia should counterbalance it.
Upon the whole, although, the public mind will not be
fully known nor finally settled for a considerable time,
appearances at present augur a more prompt and general
adoption of the Plan than could have been well expected.
When the plan came before Congress for their sanction,
a very serious effort was made by R. H. Lee
& Mr. Dane from Massachusetts to embarrass it.
It was first contended that Congress could not
properly give any positive countenance to a
measure which had for its object the subversion
of the Constitution under which they acted.
This ground of attack failing, the former gentleman
urged the expediency of sending out the plan
with amendments, & proposed a number of them
corresponding with the objections of Col. Mason.
This experiment had still less effect.
In order however to obtain unanimity it was necessary
to couch the resolution in very moderate terms.
Mr. John Adams has received permission
to return with thanks for his Services.
No provision is made for supplying his place
or keeping up any representation there.
Your reappointment for three years will be notified
from the Office of Foreign Affairs.
It was made without a negative eight states being present.
Connecticut however put in a blank ticket the sense of
that state having been declared against embassies.
Massachusetts betrayed some scruple on like ground.
Every personal consideration was avowed & I believe
with sincerity to have militated against these scruples.
It seems to be understood that letters to & from
the foreign Ministers of the U.S. are not free of Postage:
but that the charge is to be allowed in their accounts.
The exchange of our French for Dutch Creditors
has not been countenanced
either by Congress or the Treasury Board.
The paragraph in your last letter to Mr. Jay
on the subject of applying a loan in Holland to
the discharge of the pay due to the foreign Officers
has been referred to the Board since my arrival here.
No report has yet been made.
But I have little idea that the proposition will be adopted.
Such is the state & prospect of our fiscal department that
any new loan however small, that should now be made,
would probably subject us to the
reproach of premeditated deception.
The balance of Mr. Adams’ last loan will be
wanted for the interest due in Holland,
and with all the income here, will, it is feared,
not save our credit in Europe from further wounds.
It may well be doubted whether the present Government
can be kept alive through the ensuing year,
or until the new one may take its place.
Upwards of 100,000 Acres of the surveyed lands
of the U.S. have been disposed of in open market.
Five million of unsurveyed have been sold
by private contract to a New England Company
at ⅔ of a dollar per acre, payment to be made
in the principal of the public securities.
A negotiation is nearly closed with a New Jersey Company
for two million more on like terms, and another
commenced with a Company of this City for four million.
Col. Carrington writes more fully on this subject.
You will receive herewith the desired information
from Alderman Broome in the case of Mr. Burke.
Also the Virginia Bill on crimes & punishments.
Sundry alterations having been made in conformity
to the sense of the House in its latter stages,
it is less accurate & methodical than it ought to have been.
To these papers I add a Speech of
Mr. Charles Pinckney on the Mississippi business.
It is printed under precautions of secrecy,
but surely could not have been properly exposed
to so much risk of publication.
You will find also among the Pamphlets
& papers I send by Commodore Jones
another printed speech of the same Gentleman.
The Museum, Magazine, & Philadelphia Gazettes, will give
you a tolerable idea of the objects of present attention.
The summer crops in the Eastern & Middle States
have been extremely plentiful.
Southward of Virginia they differ in different places.
On the whole I do not know that they are bad in that region.
In Virginia the drought has been unprecedented,
particularly between the falls of the Rivers & the Mountains.
The Crops of Corn are in general alarmingly short.
In Orange I find there will be scarcely
subsistence for the inhabitants.
I have not heard from Albemarle.
The crops of Tobacco are everywhere said to be pretty
good in point of quantity & the quality unusually fine.
The crops of wheat were also in general
excellent in quality & tolerable in quantity.
November 1 Commodore Jones having preferred another
vessel to the packet, has remained here till this time.
The interval has produced little necessary
to be added to the above.
The Legislature of Massachusetts has it seems taken up
the Act of the Convention, and have appointed or probably
will appoint an early day for its State Convention.
There are letters also from Georgia
which denote a favorable disposition.
I am informed from Richmond that the New Election-law
from the Revised Code produced a pretty full House
of Delegates, as well as a Senate, on the first day.
It had previously had equal effect in producing
full meetings of the freeholders for the County elections.
A very decided majority of the Assembly is said to be
zealous in favor of the New Constitution.
The same is said of the Country at large.
It appears however that individuals of great weight
both within & without the Legislature are opposed to it.
A letter I just have from Mr. Archibald Stuart names
Mr. Henry, General Thomas Nelson, William Nelson,
the family of Cabels, St. George Tucker, John Taylor
and the Judges of the General Court except Paul Carrington.
The other opponents he describes as of too little note
to be mentioned, which gives a negative information
of the Characters on the other side.
All are agreed that
the plan must be submitted to a Convention.
We hear from Georgia that that State is threatened
with a dangerous war with the Creek Indians.
The alarm is of so serious a nature that martial law
has been proclaimed, and they are proceeding
to fortify even the Town of Savannah.
The idea there is that the Indians derive their motives
as well as their means from their Spanish neighbors.
Individuals complain also that their fugitive slaves
are encouraged by East Florida.
The policy of this is explained by supposing that
it is considered as a discouragement to the Georgians
to form settlements near the Spanish boundaries.
There are but few States on the spot here which
will survive the expiration of the federal year; and it is
extremely uncertain when a Congress will again be formed.
We have not yet heard who are to be
in the appointment of Virginia for the next year.18
Notes
1. From James Madison to Edmund Randolph, 8 April 1787 (Online).
2. Writings by James Madison, p. 80-85.
3. Ibid., p. 92-93.
4. Ibid., p. 94-95.
5. Ibid., p. 98-99.
6. Virginia Plan (1787) (Online).
7. The Constitutional Convention: A Narrative History from the Notes of
James Madison ed. Edward J. Larson and Michael P. Winship, p. 56-57 and (Online).
8. Writings by James Madison, p. 112-115.
9. Ibid., p. 115-117.
10. Ibid., p. 117-119.
11. Rule of Representation in the Legislature, [5 July] 1787 (Online).
12. Writings by James Madison, p. 123-125.
13. Suffrage Qualifications for Electing the House of Representatives, [7 August] 1787
(Online).
14. Writings by James Madison, p. 134-135.
15. Power of Congress to Tax Exports, [21 August] 1787 (Online).
16. The Constitutional Convention: A Narrative History from the Notes of
James Madison, p. 136-137.
17. Writings by James Madison, p. 140-142.
18. Ibid., p. 143-158.