The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
 | SPEECHES IN THE VIRGINIA CONVENTION.
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 | The writings of James Madison, |  |
SPEECHES IN THE VIRGINIA CONVENTION.[62]
JUNE 5—NECESSITY FOR THE CONSTITUTION.
Mr. Madison then arose[63]
—(but he spoke so low that his
exordium could not be heard distinctly). I shall not attempt
public welfare; we know the principles of every man will,
and ought to be judged, not by his professions and declarations,
but by his conduct; by that criterion I mean in common
with every other member to be judged; and should it
prove unfavorable to my reputation; yet, it is a criterion,
from which I will by no means depart. Comparisons have
who oppose it: although I disapprove of such comparisons,
I trust that, in points of truth, honor, candor, and rectitude
of motives, the friends of this system, here, and in other states,
are not inferior to its opponents. But, professions of attachment
to the public good, and comparisons of parties, ought
not to govern or influence us now. We ought, sir, to examine
the constitution on its own merits solely: we are to enquire
whether it will promote the public happiness: its aptitude to
produce this desirable object, ought to be the exclusive subject
of our present researches. In this pursuit, we ought not
to address our arguments to the feelings and passions, but
to those understandings and judgments which were selected by
the people of this country, to decide this great question, by
a calm and rational investigation. I hope that gentlemen, in
displaying their abilities, on this occasion, instead of giving
opinions, and making assertions, will condescend to prove
and demonstrate, by a fair and regular discussion. It gives
me pain to hear gentlemen continually distorting the natural
construction of language; for it is sufficient if any human production
can stand a fair discussion. Before I proceed to
make some additions to the reasons which have been adduced
by my honorable friend over the way, I must take the liberty
to make some observations on what was said by another
gentleman [Mr. Henry]. He told us, that this constitution
ought to be rejected, because it endangered the public liberty,
in his opinion, in many instances. Give me leave to make one
answer to that observation: let the dangers which this system
is supposed to be replete with, be clearly pointed out; if any
dangerous and unnecessary powers be given to the general
legislature, let them be plainly demonstrated, and let us not
rest satisfied with general assertions of dangers, without examination.
If powers be necessary, apparent danger is not a
sufficient reason against conceding them. He has suggested
that licentiousness, has seldom produced the loss of liberty;
but that the tyranny of rulers has almost always effected it.
more instances of the abridgment of the freedom of the people,
by gradual and silent encroachments of those in power,
than by violent and sudden usurpations: but, on a candid
examination of history, we shall find that turbulence, violence,
and abuse of power, by the majority trampling on the
rights of the minority have produced factions and commotions,
which, in republics, have more frequently than any
other cause, produced despotism. If we go over the whole
history of ancient and modern republics, we shall find their
destruction to have generally resulted from those causes. If
we consider the peculiar situation of the United States, and
what are the sources of that diversity of sentiment which pervades
its inhabitants, we shall find great danger to fear, that
the same causes may terminate here, in the same fatal effects,
which they produced in those republics. This danger ought
to be wisely guarded against. Perhaps, in the progress of this
discussion, it will appear, that the only possible remedy for
those evils and means of preserving and protecting the principles
of republicanism, will be found in that very system
which is now exclaimed against as the parent of oppression.
I must confess, I have not been able to find his usual consistency,
in the gentleman's argument on this occasion: he
informs us that the people of the country are at perfect
repose, that is, every man enjoys the fruits of his labor,
peaceably and securely, and that every thing is in perfect
tranquility and safety. I wish sincerely, sir, this were true.
If this be their happy situation, why has every state acknowledged
the contrary? Why were deputies from all the states
sent to the general convention? Why have complaints of
national and individual distresses been echoed and re-echoed
throughout the continent? Why has our general government
been so shamefully disgraced, and our constitution violated?
Wherefore have laws been made to authorize a change, and
wherefore are we now assembled here? A federal government
is formed for the protection of its individual members.
been disobeyed and despised. I think I perceive a glaring inconsistency
in another of his arguments. He complains of
this constitution, because it requires the consent of at least
three-fourths of the states to introduce amendments which
shall be necessary for the happiness of the people. The
assent of so many, he urges as too great an obstacle, to the
admission of salutary amendments, which he strongly insists,
ought to be at the will of a bare majority—we hear this
argument, at the very moment we are called upon to assign
reasons for proposing a constitution, which puts it in the
power of nine states to abolish the present inadequate, unsafe,
and pernicious confederation! In the first case, he asserts,
that a majority ought to have the power of altering the government,
when found to be inadequate to the security of
public happiness.
In the last case, he affirms that even three-fourths of the
community have not a right to alter a government, which
experience has proved to be subversive of national felicity!
Nay, that the most necessary and urgent alterations, cannot
be made without the absolute unanimity of all the states.
Does not the thirteenth article of the confederation expressly
require, that no alteration shall be made without the unanimous
consent of all the states? Could any thing in theory,
be more perniciously improvident and injudicious, than
this submission of the will of the majority to the most trifling
minority? Have not experience and practice actually
manifested this theoretical inconvenience to be extremely
impolitic? Let me mention one fact, which I conceive must
carry conviction to the mind of any one—the smallest state
in the union has obstructed every attempt to reform the
government—that like member has repeatedly disobeyed and
counteracted the general authority; nay, has even supplied
the enemies of its country with provisions. Twelve states had
agreed to certain improvements which were proposed, being
thought absolutely necessary to preserve the existence of the
really indispensable, could not by the confederation be introduced
into it without the consent of every state, the refractory
dissent of that little state prevented their adoption. The inconveniences
resulting from this requisition, of unanimous
concurrence in alterations in the confederation, must be
known to every member in this convention, it is therefore
needless to remind them of them. Is it not self-evident, that
a trifling minority ought not to bind the majority? Would
not foreign influence be exerted with facility over a small minority?
Would the honorable gentleman agree to continue the
most radical defects in the old system, because the petty
state of Rhode Island would not agree to remove them?
He next objects to the exclusive legislation over the district
where the seat of government may be fixed. Would he submit
that the representatives of this state should carry on their
deliberations under the control of any one member of the
union? If any state had the power of legislation over the
place where congress should fix the general government, this
would impair the dignity, and hazard the safety of congress.
If the safety of the union were under the control of any
particular state, would not foreign corruption probably
prevail in such a state, to induce it to exert its controlling influence
over the members of the general government? Gentlemen
cannot have forgotten the disgraceful insult which
congress received some years ago. When we also reflect, that
the previous session of particular states is necessary, before
congress can legislate exclusively any where, we must, instead
of being alarmed at this part, heartily approve of it.
But, the honorable member sees great danger in the provision
concerning the militia: this, I conceive, to be an
additional security to our liberty, without diminishing the
power of the states, in any considerable degree; it appears to
me so highly expedient, that I should imagine it would have
found advocates even in the warmest friends of the present
system: the authority of training the militia, and appointing
the power of establishing an uniform discipline throughout the
states; and to provide for the execution of the laws, suppress
insurrections and repel invasions; these are the only cases
wherein they can interfere with the militia; and the obvious
necessity of their having power over them in these cases, must
convince any reflecting mind. Without uniformity of discipline,
military bodies would be incapable of action: without
a general controlling power to call forth the strength of the
union, to repel invasions, the country might be over-run, and
conquered by foreign enemies. Without such a power to suppress
insurrections, our liberties might be destroyed by
domestic faction, and domestic tyranny be established.
The honorable member then told us, that there was no
instance of power once transferred, being voluntarily renounced.
Not to produce European examples, which may
probably be done before the rising of this convention, have
we not seen already in seven states (and probably in an eighth
state) legislatures surrendering some of the most important
powers they possessed? But, Sir, by this government, powers
are not given to any particular set of men, they are in the
hands of the people; delegated to their representatives chosen
for short terms; to representatives responsible to the people,
and whose situation is perfectly similar to our own; as long
as this is the case we have no danger to apprehend. When
the gentleman called our recollection to the usual effects of
the concession of powers, and imputed the loss of liberty
generally to open tyranny I wish he had gone on farther.
Upon his review of history he would have found, that the loss
of liberty very often resulted from factions and divisions;
from local considerations, which eternally lead to quarrels,
he would have found internal dissentions to have more frequently
demolished civil liberty, than a tenacious disposition
in rulers, to retain any stipulated powers.
(Here Mr. Madison enumerated the various means whereby
nations had lost their liberties.)
The power of raising and supporting armies is exclaimed
against, as dangerous and unnecessary. I wish there were
no necessity of vesting this power in the general government.
But, suppose a foreign nation to declare war against the
United States, must not the general legislature have the power
of defending the United States? Ought it to be known to
foreign nations, that the general government of the United
States of America has no power to raise and support an army,
even in the utmost danger, when attacked by external enemies?
Would not their knowledge of such a circumstance
stimulate them to fall upon us? If, sir, congress be not invested
with this power, any powerful nation, prompted by
ambition or avarice, will be invited, by our weakness, to attack
us; and such an attack, by disciplined veterans, would certainly
be attended with success, when only opposed by irregular,
undisciplined militia. Whoever considers the peculiar
situation of this country, the multiplicity of its excellent
inlets and habours, and the uncommon facility of attacking
it, however much he may regret the necessity of such a power,
cannot hesitate a moment in granting it. One fact may
elucidate this argument. In the course of the late war, when
the weak parts of the union were exposed, and many states
were in the most deplorable situation, by the enemy's ravages,
the assistance of foreign nations was thought so urgently
necessary for our protection, that the relinquishment of territorial
advantages, was not deemed too great a sacrifice for
the acquisition of one ally. This expedient was admitted
with great reluctance, even by those states who expected
advantages from it. The crisis however at length arrived
when it was judged necessary for the salvation of this country,
to make certain cessions to Spain; whether wisely, or otherwise,
is not for me to say; but the fact was, that instructions
were sent to our representative at the court of Spain, to empower
him to enter into negotiations for that purpose.—How
it terminated is well known. This fact shews the extremities
to which nations will go in cases of imminent danger, and
The necessity of making dangerous cessions, and of
applying to foreign aid, ought to be excluded.
The honorable member then told us, that there are heartburnings
in the adopting states, and that Virginia may, if she
does not come into the measure, continue in amicable confederacy
with the adopting states. I wish as seldom as
possible to contradict the assertions of gentlemen, but I can
venture to affirm, without danger of being in an error, that
there is the most satisfactory evidence, that the satisfaction
of those states is increasing every day, and that, in that state,
where it was adopted only by a majority of nineteen, there
is not one-fifth of the people dissatisfied. There are some
reasons which induce us to conclude, that the grounds of
proselytism extend every where; its principles begin to be
better understood; and the inflammatory violence, wherewith
it was opposed by designing, illiberal, and unthinking minds
begins to subside. I will not enumerate the causes from which
in my conception, the heart-burnings, of a majority of its opposers
have originated. Suffice it to say, that in all they were
founded on a misconception of its nature and tendency. Had
it been candidly examined and fairly discussed, I believe, sir,
that but a very inconsiderable minority of the people of the
United States would have opposed it. With respect to the
Swiss, which the honorable gentleman has proposed for our
example, as far as historical authority may be relied on, we
shall find their government quite unworthy of our imitation.
I am sure if the honorable gentleman had adverted to their
history and government, he never would have quoted their
example here; he would have found that instead of respecting
the rights of mankind, their government (at least of several
of their cantons) is one of the vilest aristocracies that ever was
instituted: the peasants of some of their cantons are more
oppressed and degraded than the subjects of any monarch in
Europe: nay, almost as much so, as those of any eastern
despot. It is a novelty in politics, that from the worst of
rigor, and the peculiarity of their situation, have so
long supported their union: without the closest alliance and
amity, dismemberment might follow, their powerful and ambitious
neighbors would immediately avail themselves of their
least jarrings. As we are not circumstanced like them, no
conclusive precedent can be drawn from their situation. I
trust, the gentleman does not carry his idea so far as to
recommend a separation from the adopting states. This
government may secure our happiness; this is at least as
probable, as that it shall be oppressive. If eight states have,
from a persuasion of its policy and utility, adopted it, shall
Virginia shrink from it, without a full conviction of its danger
and inutility? I hope she will never shrink from any duty:
I trust she will not determine without the most serious reflection
and deliberation.
I confess to you, sir, were uniformity of religion to be introduced
by this system, it would, in my opinion, be ineligible;
but I have no reason to conclude, that uniformity of government
will produce that of religion. This subject is, for the
honor of America, perfectly free and unshackled. The government
has no jurisdiction over it—the least reflection will
convince us, there is no danger to be feared on this ground.
But we are flattered with the probability of obtaining previous
amendments. This calls for the most serious attention
of this house. If amendments are to be proposed by one
state, other states have the same right, and will also propose
alterations. These cannot but be dissimilar, and opposite
in their nature. I beg leave to remark, that the governments
of the different states, are in many respects dissimilar, in their
structure; their legislative bodies are not similar—their executive,
are more different. In several of the states the first
magistrate is elected by the people at large—in others, by
joint ballot of the members of both branches of the legislature
—and in others, in other different manners. This dissimilarity
has occasioned a diversity of opinion on the theory of government,
a concurrence impossible. Although the appointment of an
executive magistrate, has not been thought destructive to the
principles of democracy in many of the states, yet, in the
course of the debate, we find objections made to the federal
executive: it is urged that the president will degenerate into
a tyrant. I intended, in compliance with the call of the
honorable member, to explain the reasons of proposing this
constitution, and develop its principles; but I shall postpone
my remarks, till we hear the supplement which he has informed
us, he intends to add to what he has already said.
Give me leave to say something of the nature of the government,
and to show that it is safe and just to vest it with the
power of taxation. There are a number of opinions; but the
principal question is, whether it be a federal or consolidated
government: in order to judge properly of the question before
us, we must consider it minutely in its principal parts. I conceive
myself that it is of a mixed nature; it is in a manner
unprecedented; we cannot find one express example in the
experience of the world. It stands by itself. In some respects
it is a government of a federal nature; in others it is of a
consolidated nature. Even if we attend to the manner in
which the constitution is investigated, ratified and made the
act of the people of America, I can say, notwithstanding what
the honorable gentleman has alleged, that this government is
not completely consolidated, nor is it entirely federal. Who
are parties to it? The people—but not the people as composing
one great body; but the people as composing thirteen
sovereignties: were it as the gentleman asserts, a consolidated
government, the assent of a majority of the people would
be sufficient for its establishment, and as a majority, have
adopted it already, the remaining states would be bound
by the act of the majority, even if they unanimously reprobated
it: were it such a government as it is suggested, it would
be now binding on the people of this state, without having
had the privilege of deliberating upon it; but, sir, no state is
the states adopt it, it will be then a government established
by the thirteen states of America, not through the intervention
of the legislatures, but by the people at large. In this particular
respect the distinction between the existing and
proposed governments is very material. The existing system
has been derived from the dependent derivative authority of
the legislatures of the states, whereas this is derived from the
superior power of the people. If we look at the manner in
which alterations are to be made in it, the same idea is in some
degree attended to. By the new system a majority of the
states cannot introduce amendments; nor are all the states
required for that purpose; three-fourths of them must concur
in alterations: in this there is a departure from the federal
idea. The members to the national house of representatives
are to be chosen by the people at large, in proportion to the
numbers in the respective districts. When we come to the
senate, its members are elected by the states in their equal
and political capacity; but had the government been completely
consolidated, the senate would have been chosen by
the people in their individual capacity, in the same manner
as the members of the other house. Thus it is of a complicated
nature, and this complication, I trust, will be found to
exclude the evils of absolute consolidation, as well as of a
mere confederacy. If Virginia was separated from all the
states, her power and authority would extend to all cases: in
like manner were all powers vested in the general government,
it would be a consolidated government; but the powers of the
federal government are enumerated; it can only operate in
certain cases; it has legislative powers on defined and limited
objects, beyond which it cannot extend its jurisdiction.
But the honorable member has satirised with peculiar
acrimony, the powers given to the general government by this
constitution. I conceive that the first question on this subject
is, whether these powers be necessary; if they be, we are
reduced to the dilemma of either submitting to the inconvenience,
important of these reprobated powers; that of direct taxation
is most generally obejcted to. With respect to the exigencies
of government, there is no question but the most easy mode
of providing for them will be adopted. When, therefore,
direct taxes are not necessary, they will not be recurred to.
It can be of little advantage to those in power, to raise money,
in a manner oppressive to the people. To consult the conveniences
of the people, will cost them nothing, and in many
respects will be advantageous to them. Direct taxes will only
be recurred to for great purposes. What has brought on other
nations those immense debts, under the pressure of which
many of them labor? Not the expenses of their governments,
but war. If this country should be engaged in war, and I
conceive we ought to provide for the possibility of such a case,
how would it be carried on? By the usual means provided
from year to year? As our imports will be necessary for the
expenses of government and other common exigencies, how
are we to carry on the means of defence? How is it possible
a war could be supported without money or credit? And
would it be possible for a government to have credit without
having the power of raising money? No, it would be impossible
for any government, in such a case, to defend itself.
Then, I say, sir, that it is necessary to establish funds for
extraordinary exigencies, and give this power to the general
government—for the utter inutility of previous requisitions
on the states is too well known. Would it be possible for
those countries, whose finances and revenues are carried to
the highest perfection, to carry on the operations of Government
on great emergencies, such as the maintenance of a war,
without an uncontrolled power of raising money? Has it not
been necessary for Great Britain, notwithstanding the facility
of the collection of her taxes, to have recourse very often to
this and other extraordinary methods of procuring money?
Would not her public credit have been ruined, if it was known
that her power to raise money was limited? Has not France
raise funds? It has been the case in many countries, and no
government can exist, unless its powers extend to make provisions
for every contingency. If we were actually attacked
by a powerful nation, and our general government had not
the power of raising money, but depended solely on requisitions,
our condition would be truly deplorable—if the revenue
of this commonwealth were to depend on twenty distinct
authorities, it would be impossible for it to carry on its operations.
This must be obvious to every member here; I think
therefore, that it is necessary for the preservation of the union,
that this power shall be given to the general government.
But it is urged, that its consolidated nature, joined to the
power of direct taxation, will give it a tendency to destroy
all subordinate authority; that its increasing influence will
speedily enable it to absorb the state governments. I cannot
think this will be the case. If the general government were
wholly independent of the governments of the particular
states, then indeed usurpation might be expected to the fullest
extent: but, sir, on whom does this general government depend?
It derives its authority from these governments, and
from the same sources from which their authority is derived.
The members of the federal government are taken from the
same men from whom those of the state legislatures are taken.
If we consider the mode in which the federal representatives
will be chosen, we shall be convinced, that the general, will
never destroy the individual, governments; and this convicion
must be strengthened by an attention to the construction
of the senate. The representatives will be chosen probably
under the influence of the members of the state legislatures:
but there is not the least probability that the election of the
latter will be influenced by the former. One hundred and
sixty members represent this commonwealth in one branch of
the legislature, are drawn from the people at large, and must
ever possess more influence than the few men who will be
elected to the general legislature.
The reasons offered on this subject, by a gentleman on the
same side [Mr. Nicholas] were unanswerable, and have been
so full, that I shall add but little more on the subject. Those
who wish to become federal representatives, must depend on
their credit with that class of men who will be the most popular
in their counties, who generally represent the people in the
state governments: they can, therefore, never succeed in any
measure contrary to the wishes of those on whom they depend.
It is almost certain, therefore, that the deliberations of the
members of the federal house of representatives, will be
directed to the interest of the people of America. As to the
other branch, the senators will be appointed by the legislatures,
and though elected for six years, I do not conceive they will
so soon forget the source from whence they derive their political
existence. This election of one branch of the federal by
the state legislatures, secures an absolute dependence of the
former on the latter. The biennial exclusion of one third, will
lessen the facility of a combination, and may put a stop to
intrigues. I appeal to our past experience, whether they will
attend to the interests of their constituent states. Have not
those gentlemen who have been honored with seats in congress,
often signalized themselves by their attachment to their seats?
I wish this government may answer the expectation of its
friends, and foil the apprehension of its enemies. I hope the
patriotism of the people will continue, and be a sufficient
guard to their liberties. I believe its tendency will be, that
the state governments will counteract the general interest, and
ultimately prevail. The number of the representatives is yet
sufficient for our safety, and will gradually increase—and if we
consider their different sources of information, the number
will not appear too small.
He was first on his feet the day before (June 4), when he briefly
replied to Mason, merely asserting that power to lay taxes was just,
that the Constitution would not eventuate in consolidation and that
representation was sufficient.
JUNE 7—POWER TO LAY TAXES.
Mr. MADISON.—Mr. Chairman, in considering this great subject
I trust we shall find that part which gives the general
and essential to the existence of any efficient, or well
organized system of government: if we consult reason, and
be ruled by its dictates, we shall find its justification there; if
we review the experience we have had, or contemplate the
history of nations, here we find ample reasons to prove its
expediency. There is little reason to depend for necessary
supplies on a body which is fully possessed of the power of
withholding them. If a government depends on other governments
for its revenues: if it must depend on the voluntary
contributions of its members, its existence must be precarious.
A government which relies on thirteen independent sovereignties,
for the means of its existence, is a solecism in theory,
and a mere nullity in practice. Is it consistent with reason,
that such a government can promote the happiness of any
people? It is subversive of every principle of sound policy,
to trust the safety of a community with a government, totally
destitute of the means of protecting itself or its members.
Can congress, after the repeated unequivocal proofs it has
experienced of the utter inutility and inefficacy of requisitions,
reasonably expect, that they would be hereafter effectual
or productive? Will not the same local interests, and other
causes, militate against a compliance? Whoever hopes the
contrary must ever be disappointed. The effect, sir, cannot
be changed without a removal of the cause. Let each county
in this commonwealth be supposed free and independent; let
your revenues depend on requisitions of proportionate quotas
from them: let application be made to them repeatedly: is it
to be presumed that they would comply, or that an adequate
collection could be made from partial compliances? It is now
difficult to collect the taxes from them: how much would that
difficulty be enhanced, were you to depend solely on their
generosity? I appeal to reason or every gentleman here,
whether he is not persuaded, that the present confederation
is as feeble, as the government of Virginia would be in that
case, to the same reason I appeal, whether it be incompatible
palpable debility.
If we recur to history, and review the annals of mankind, I
undertake to say that no instance can be produced by the
most learned man of any confederate government, that will
justify a continuation of the present system; or that will not
demonstrate the necessity of this change: and of substituting
to the present pernicious and fatal plan, the system now under
consideration, or one equally energetic. The uniform conclusion
drawn from a review of ancient and modern confederacies,
is, that instead of promoting the public happiness, or
securing public tranquility, they have, in every instance, been
productive of anarchy and confusion; ineffectual for the preservation
of harmony, and a prey to their own dissentions
and foreign invasions.
The Amphyctionic league resembled our confederation in
its nominal powers; it was possessed of rather more power.
The component states retained their sovereignty, and enjoyed
an equality of suffrage in the federal council. But though its
powers were more considerable in many respects than those
of our present system; yet it had the same radical defect. Its
powers were exercised over its individual members, in their
political capacities. To this capital defect it owed its disorders,
and final destruction. It was compelled to recur to
the sanguinary coercion of war to enforce its decrees.—The
struggles consequent on a refusal to obey a decree, and an
attempt to enforce it, produced the necessity of applying to
foreign assistance; by complying with such an application,
together with his intrigues, Philip of Macedon acquired sufficient
influence to become a member of the league. This
artful and insidious prince, soon after became master of their
liberties.
The Achean league, though better constructed than the
Amphyctionic, in material respects, was continually agitated
with domestic dissentions, and driven to the necessity of
calling in foreign aid; this, also, eventuated in the demolition
their people would have been happier; and their united wisdom
and strength, would not only have rendered unnecessary
all sovereign interpositions in their affairs, but would have
enabled them to repel the attack of an enemy. If we descend
to more modern examples, we shall find the same evils resulting
from the same sources.
The Germanic system is neither adequate to the external
defence, nor internal felicity of the people; the doctrine of
quotas and requisitions flourishes here. Without energy—
without stability—the empire is a nerveless body. The most
furious conflicts, and the most implacable animosities between
its members, strikingly distinguish its history. Concert and
co-operation are incompatible with such an injudiciously constructed
system.
The republic of the Swiss is sometimes instanced for its
stability, but even there, dissentions and wars of a bloody
nature have been frequently seen between the cantons. A
peculiar coincidence of circumstances contributes to the continuance
of their political connection. Their feeble association
owes its existence to their singular situation. There is a
schism this moment, in their confederacy, which, without the
necessity of uniting for their external defence, would immediately
produce its dissolution.
The confederate government of Holland, is a further confirmation
of the characteristic imbecility of such governments.
From the history of this government we might derive lessons
of the most important utility.
(Here Mr. Madison quoted sundry passages from De Witt,
respecting the people of Holland, and the war which they had
so long supported against the Spanish monarch: shewing the
impolitic and injudicious structure of their confederacy; that
it was entirely destitute of energy, because their revenues
depended chiefly on requisitions; that during that long war,
the provinces of Guelderland, and Overyssel had not paid
their respective quotas, but had evaded, altogether, their payments;
of the community had never been brought into action, nor
contributed in the least toward the prosecution of the war;
that the fear of pressing danger stimulated Holland and the
other provinces to pay all the charges of the war; that those
two provinces had continued their delinquences; that the
province of Holland alone, paid more than all the rest; still
those provinces who paid up their proportional shares, claimed
from the failing states the amounts of their arrearages; that
the most fatal consequences had nearly resulted from the
difficulty of adjusting those claims; and from the extreme
aversion of the delinquent states to discharge even their most
solemn engagements; that there are existing controversies
between the provinces on this account at present; and to add
to the evils consequent upon requisitions, that unanimity and
the revision and sanction of their constituents, were necessary
to give validity to the decisions of the states general.)
Mr. Madison then added—that these radical defects in their
confederacy must have dissolved their association long ago,
were it not for their peculiar position—circumscribed in a narrow
territory; surrounded by the most powerful nations in the
world; possessing peculiar advantages from their situation;
an extensive navigation and a powerful navy—advantages
which it was clearly the interest of those nations to diminish
or deprive them of; and that their late unhappy dissentions
were manifestly produced by the vices of their system. He
then continued—We may derive much benefit from the experience
of that unhappy country. Governments destitute
of energy, will ever produce anarchy. These facts are worthy
the most serious consideration of every gentleman here. Does
not the history of these confederacies coincide with the lesson
drawn from our own experience? I most earnestly pray that
America may have sufficient wisdom to avail herself of the
instructive information she may derive from a contemplation
of the sources of their misfortunes, and that she may escape a
similar fate by avoiding the causes from which their infelicity
contribution of the states for its support, dismemberment
of the United States may be the consequence. In
cases of eminent danger, the states more immediately exposed
to it, would only exert themselves—those remote from it,
would be too supine to interest themselves warmly in the fate
of those whose distresses they did not immediately perceive.
The general government ought, therefore, to be empowered to
defend the whole union.
Must we not suppose, that those parts of America which are
most exposed, will first be the scenes of war? Those nations
whose interest is incompatible with an extension of our power,
and who are jealous of our resources to become powerful and
wealthy, must naturally be inclined to exert every means to
prevent our becoming formidable. Will they not be impelled
to attack the most exposed parts of the union? Will not their
knowledge of the weakness of our government stimulate them
the more readily to such an attack? Those parts to which
relief can be afforded with most difficulty, are the extremities
of the country, and will be the first objects of our enemies.
The general government having no resources beyond what are
adequate to its existing necessities, will not be able to afford
any effectual succor to those parts which may be invaded.
America, in such a case, would palpably perceive the danger
and folly of withholding from the union, a power sufficient to
protect the whole territory of the United States. Such an
attack is far from improbable, and if it be actually made, it is
difficult to conceive a possibility of escaping the catastrophe
of a dismemberment. On this subject we may receive an
estimable and instructive lesson from an American confederacy;
from an example which has happened in our country
and which applies to us with peculiar force, being most analogous
to our situation. I mean that species of association or
union which subsisted in New England. The colonies of
Massachusetts, Bristol, Connecticut, and New Hampshire,
were confederated together.
The object of that confederacy was primarily to defend
themselves against the inroads and depredations of the Indians,
They had a common council, consisting of deputies
from each party, with an equality of suffrage in their deliberations.
The general expenditures and charges were to be
adequately defrayed. Its powers were very similar to those
of the confederation. Its history proves clearly, that a government
founded on such principles must ever disappoint the
hopes of those who expect its operation to be conducive to the
public happiness.
There are facts on record to prove, that instead of answering
the end of its institution, or the expectation of its framers, it
was violated with impunity, and only regarded when it coincided
perfectly with the views and immediate interests of their
respective parties.
The strongest member of the union availed itself of its circumstances
to infringe their confederacy. Massachusetts refused
to pay its quotas. In the war between England and
Holland, it was found particularly necessary to make exertions
for the protection of that country.
Massachusetts being then more powerful and less exposed
than the other colonies, refused its contributions to the general
defence. In consequence of this, the common council remonstrated
against the council of Massachusetts. This altercation
terminated in the dissolution of their union. From this brief
account of a system, perfectly resembling our present one we
may easily divine the inevitable consequences of a longer
adherence to the latter.
(Mr. Madison then recapitulated many instances of the prevalent
persuasion of the wisest patriots of the states, that the
safety of all America depended on union; and that the government
of the U. States must be possessed of an adequate degree
of energy, or that otherwise their connection could not be
justly denominated an union. He likewise enumerated the
expedients that had been attempted by the people of America
to form an intimate association, from the meeting at New York
subject had been uniform, both in their colonial and independent
conditions: and that a variety of courses had hitherto
prevented the adoption of an adequate system.)
He then continued thus—If we take experience for our
guide, we shall find still more instructive direction on this subject.
The weakness of the existing articles of the union, shewed
itself during the war. It has manifested itself since the peace,
to such a degree, as admits of no doubt to a rational, intelligent,
and unbiassed mind, of the necessity of alteration—nay,
this necessity is obvious to all America—it has forced itself on
the minds of the people. The committee has been informed,
that the confederation was not completed till the year 1781,
when a great portion of the war was ended, consequently no
part of the merit of the antecedent operations of the war could
justly be attributed to that system. Its debility was perceived
almost as soon as it was put in operation. A recapitulation
of the proofs which have been experienced of its
inefficacy is necessary. It is most notorious, that feebleness
universally marked its character. Shall we be safe in another
war in the same situation? That instrument required the
voluntary contributions of the states, and thereby sacrificed
some of our best privileges. The most intolerable and unwarrantable
oppressions were committed on the people during
the late war. The gross enormity of those oppressions might
have produced the most serious consequences, were it not
for the spirit of liberty, which preponderated against every
consideration.
A scene of injustice, partiality and oppression, may bring
heavenly vengeance on any people. We are now by our suffering
expiating the crimes of the otherwise glorious revolution.
Is it not known to every member of this committee,
that the great principles of a free government, were reversed
through the whole progress of that scene? Was not every state
harrassed? Was not every individual oppressed and subjected
to repeated distresses? Was this right? Was it a
overlooked, the most wanton deprivation of property? Had
the government been vested with complete power to procure
a regular and adequate supply of revenue, those oppressive
measures would have been unnecessary. But, sir, can it be
supposed that a repetition of such measures would ever be
acquiesced in? Can a government that stands in need of such
measures secure the liberty or promote the happiness or glory
of any country? If we do not change this system, consequences
must ensue that gentlemen do not now apprehend.
If other testimony were necessary, I might appeal to that
which I am sure is very weighty, but which I mention with
reluctance. At the conclusion of the war, the man who had
the most extensive acquaintance with the nature of the
country, who well understood its interests, and who had
given the most unequivocal and most brilliant proofs of his
attachment to its welfare—when he laid down his arms,
wherewith he had so nobly and successfully defended his
country publicly testified his disapprobation of the present
system; and suggested that some alteration was necessary to
render it adequate to the security of our happiness. I did not
introduce that great name to bias any gentleman here. Much
as I admire and revere the man, I consider these members as
not to be actuated by the influence of any man; but I introduced
him as a respectable witness to prove that the articles
of the confederation were inadequate, and that we must resort
to something else. His modesty did not point out what ought
to be done, but said, that some great change was necessary.
But, sir, testimony if wished for, may be found in abundance,
and numerous conclusive reasons urged for this change. Experience
was daily producing such irresistible proofs of the
defects of this system, this commonwealth was induced to
exert her influence to meliorate it: she began that noble work,
in which I hope she will persist: she proposed to revise it—
her proposition met with that concurrence, which that of a
respectable party will always meet. I am sure if demonstration
reasons have been abundantly heard in the course of this debate,
manifold and cogent enough, not only to operate conviction;
but to disgust an attentive hearer. Recollect the
resolution of the year 1784. It was then found that the whole
burthen of the union was sustained by a few states. This
state was likely to be saddled with a very disproportionate
share. That expedient was proposed (to obviate this inconvenience)
which has been placed in its true light. It has been
painted in sufficient horrors by the honorable gentleman who
spoke last.
I agree with the honorable gentleman, Mr. Henry, that
national splendour and glory are not our objects—but does
he distinguish between what will render us secure and happy
at home, and what will render us respectable abroad? If we
be free and happy at home, we shall be respectable abroad.
The confederation is so notoriously feeble, that foreign
nations are unwilling to form any treaties with us—they are
apprised that our general government cannot perform any of
its engagements; but, that they may be violated at pleasure
by any of the states. Our violation of treaties already entered
into, proves this truth unequivocally. No nation will, therefore,
make any stipulations with congress, conceding any
advantages of importance to us: they will be the more averse
to entering into engagements with us, as the imbecility of our
government enables them to derive many advantages from
our trade, without granting us any return. But were this
country united by proper bands, in addition to other great
advantages, we could form very beneficial treaties with foreign
states. But this can never happen without a change in our
system. Were we not laughed at by the minister of that
nation, from which we may be able yet to extort some of the
most salutary measures for this country? Were we not told
that it was necessary to temporize till our government acquired
consistency? Will any nation relinquish national
advantages to us? You will be greatly disappointed, if you
Let us recollect our conduct to that country from which we
have received the most friendly aid. How have we dealt
with that benevolent ally? Have we complied with our most
sacred obligations to that nation? Have we paid the interest
punctually from year to year? Is not the interest accumulating,
while not a shilling is discharged of the principal? The
magnanimity and forbearance of that ally are so great, that
she has not called upon us for her claims, even in her own distress
and necessity. This, sir, is an additional motive to
increase our exertions. At this moment of time a very considerable
amount is due from us to that country and others.
(Here Mr. Madison mentioned the amount of the debts due
to different foreign nations.)
We have been obliged to borrow money, even to pay the
interest of our debts. This is a ruinous and most disgraceful
expedient. Is this a situation on which America can rely for
security and happiness? How are we to extricate ourselves?
The honorable member told us, we might rely on the punctuality
and friendship of the states, and that they will discharge
their quotas for the future. The contributions of the states
have been found inadequate from the beginning, and are
diminishing instead of increasing. From the month of June
1787, till June 1788, they have only paid 276,641 dollars into
the federal treasury for the purposes of supporting the national
government, and discharging the interest of the national
debts: a sum so very insufficient, that it must greatly alarm
the friends of their country. Suggestions and strong assertions
dissipate before these facts. I shall no longer fatigue the
committee at this time, but will resume the subject as early
as I can.
JUNE 11—POWER TO LAY TAXES.[64]
Mr. Madison.—Mr. Chairman, it was my purpose to resume
before now, what I had left unfinished, concerning the necessity
of a radical change of our system. The intermission
which has taken place discontinued the progress of the argument,
and has given opportunity to others to advance arguments
on different parts of the plan. I hope we shall steer
our course in a different manner from what we have hitherto
done. I presume that vague discourses and mere sports of
fancy, not relative to the subject at all, are very improper on
this interesting occasion. I hope these will be no longer attempted,
but that we shall come to the point. I trust we
shall not go out of order, but confine ourselves to the clause
under consideration. I beg gentlemen would observe this
rule. I shall endeavor not to depart from it myself.
The subject of direct taxation is perhaps one of the most
be involved in the discussion of this question. If it be, to be
judged by the comments made upon it, by the opposers and
favorers of the proposed system, it requires a most clear and
critical investigation. The objections against the exercise of
this power by the general government as far as I am able to
comprehend them, are founded upon the supposition of its
being unnecessary, impracticable, unsafe and accumulative of
expense. I shall therefore consider, 1st, how far it may be
necessary; 2d, how far it may be practicable; 3dly, how far
it may be safe, as well with respect to the public liberty at
large, as to the state legislatures; and 4thly, with respect to
economy. First, then, is it necessary? I must acknowledge
that I concur in opinion with those gentlemen who told you
that this branch of revenue was essential to the salvation of
the union. It appears to me necessary, in order to secure that
punctuality which is necessary in revenue matters. Without
punctuality individuals will give it no confidence, without
which it cannot get resources. I beg gentlemen to consider
the situation of this country, if unhappily the government
were to be deprived of this power. Let us suppose for a
us, should take advantage of our weakness, which they will be
more ready to do when they know the want of this resource
in our government. Suppose it should attack us, what forces
could we oppose to it? Could we find safety in such forces as
we could call out? Could we call forth a sufficient number,
either by draughts, or any other way, to repel a powerful
enemy? The inability of the government to raise and support
regular troops, would compel us to depend on militia.
It would be then necessary to give this power to the government,
or run the risk of national annihilation. It is my firm
belief, that if a hostile attack were made this moment on the
United States, it would flash conviction on the minds of the
citizens of the United States, of the necessity of vesting
the government with this power, which alone can enable it to
protect the community. I do not wish to frighten the members
into a concession of this power, but to bring to their
minds those considerations which demonstrate its necessity.
If we were secured from the possibility, or probability of
danger, it might be unnecessary. I shall not review that concourse
of dangers which may probably arise at remote periods
of futurity, nor all those which we have immediately to
apprehend, for this would lead me beyond the bounds which
I prescribed myself. But I will mention one single consideration,
drawn from fact itself. I hope to have your attention.
By the treaty between the United States and his most
Christian majesty, among other things it is stipulated, that
the great principle on which the armed neutrality in Europe
was founded, should prevail in case of future wars. The
principle is this, that free ships shall make free goods, and
that vessels and goods shall be both free from condemnation.
Great Britain did not recognize it. While all Europe was
against her, she held out without acting to it. It has been
considered for sometime past, that the flames of war already
kindled, would spread, and that France and England were
likely to draw those swords which were so recently put up.
short time, to consider ourselves as a neuteral nation—
France on one side, and Great Britain on the other. What
is the situation of America? She is remote from Europe, and
ought not to engage in her politics or wars. The American
vessels, if they can do it with advantage, may carry on the
commerce of the contending nations. It is a source of wealth
which we ought not to deny to our citizens. But, Sir, is there
not infinite danger, that in despite of all our caution we shall
be drawn into the war? If American vessels have French
property on board, Great Britain will seize them. By this
means we shall be obliged to relinquish the advantage of a
neutral nation, or be engaged in a war.
A neutral nation ought to be respectable, or else it will be
insulted and attacked. America in her present impotent
situation would run the risk of being drawn in as a party in
the war, and lose the advantage of being neutral. Should it
happen that the British fleet should be superior, have we not
reason to conclude, from the spirit displayed by that nation
to us and to all the world, that we should be insulted in our
own ports, and our vessels seized? But if we be in a respectable
situation—if it be known that our government can command
the whole resources of the union, we shall be suffered to
enjoy the great advantages of carrying on the commerce of
the nations at war: for none of them would be willing to add
us to the number of their enemies. I shall say no more on
this point, there being others which merit your consideration.
The expedient proposed by the gentlemen opposed to this
clause, is, that requisitions shall be made, and if not complied
with in a certain time, that then taxation shall be recurred to.
I am clearly convinced, that whenever requisitions shall be
made, they will disappoint those who put their trust in them
One reason to prevent the concurrent exertions of all the
states, will arise from the suspicion, in some states, of delinquency
in others. States will be governed by the motives
that actuate individuals.
When a tax is in operation in a particular state, every
citizen, if he knows of the energy of the laws to enforce payment,
and that every other citizen is performing his duty, will
cheerfully discharge his duty; but were it known that the citizens
of one district were not performing their duty, and that
it was left to the policy of the government to make them
come up with it, the other districts would be very supine and
careless in making provisions for payment. Our own experience
makes the illustration more natural. If requisitions be
made on thirteen different states, when one deliberates on the
subject, she will know that all the rest will deliberate upon it
also. This, Sir, has been a principal cause of the inefficacy of
requisitions heretofore, and will hereafter produce the same
evil. If the legislatures are to deliberate on this subject, (and
the honorable gentleman opposed to this clause, thinks their
deliberation necessary) is it not presumable, that they will
consider peculiar local circumstances? In the general council,
on the contrary, the sense of all America would be drawn to a
single point. The collective interest of the union at large,
will be known and pursued. No local views will be permitted
to operate against the general welfare. But when propositions
would come before a particular state, there is every
reason to believe, that qualifications of the requisitions would
be proposed—compliance might be promised, and some instant
remittances might be made. This will cause delays,
which in the first instance will produce disappointment. This
also will make failures every where else. This I hope will be
considered with the attention it deserves. The public creditors
will be disappointed, and more pressing. Requisitions will
be made for purposes equally pervading all America; but the
exertions to make compliances, will probably be not uniform
in the states. If requisitions be made for future occasions,
for putting the states in a state of military defence, or to
repel an invasion, will the exertions be uniform and equal in
all the states? Some parts of the United States are more
exposed than others. Will the least exposed states exert
be more immediately interested, and will make less sacrifices
in making exertions. I beg gentlemen to consider that this
argument will apply with most effect to the states which are
most defenceless and exposed. The southern states are most
exposed, whether we consider their situation, or the smallness
of their population. And there are other circumstances which
render them still more vulnerable, which do not apply to the
northern states. They are therefore more interested in giving
the government a power to command the whole strength of
the union in cases of emergency. Do not gentlemen conceive
this mode of obtaining supplies from the states, will keep alive
animosities between the general government and particular
states? Where the chances of failures are so numerous as
thirteen, by the thirteen states, disappointment in the first
place, and consequent animosity must inevitably take place.
Let us consider the alternatives proposed by gentlemen, instead
of the power of laying direct taxes. After the states
shall have refused to comply, weigh the consequences of the
exercise of this power by congress. When it comes in the form
of a punishment, great clamours will be raised among the
people against the government; hatred will be excited against
it. It will be considered as an ignominious stigma on the
state. It will be considered at least in this light by the state
where the failure is made, and these sentiments will no doubt
be diffused through the other states. Now let us consider the
effect, if collectors are sent where the state governments refuse
to comply with requisitions. It is too much the disposition of
mankind not to stop at one violation of duty. I conceive that
every requisition that will be made on my part of America,
will kindle a contention between the delinquent member, and
the general government. Is there no reason to suppose divisions
in the government (for seldom does any thing pass with
unanimity) on the subject of requisitions? The parts least
exposed will oppose those measures which may be adopted
for the defence of the weakest parts. Is there no reason to
will be more likely to foster disobedience to the requisitions of
the government, than study to recommend them to the public?
There is in my opinion, another point of view in which this
alternative will produce great evil. I will suppose, what is
very probable, that partial compliances will be made. A
difficulty here arises which fully demonstrates its impolicy.
If a part be paid, and the rest withheld, how is the general
government to proceed? They are to impose a tax, but how
shall it be done in this case? Are they to impose it by way of
punishment, on those who have paid, as well as those who
have not? All these considerations taken into view (for they
are not visionary or fanciful speculations) will, perhaps, produce
this consequence. The general government to avoid
those disappointments which I first described, and to avoid
the contentions and embarrassments which I last described,
will in all probability, throw the public burdens on those
branches of revenue which will be more in their power. They
will be continually necessitated to augment the imposts. If
we throw a disproportion of the burdens on that side, shall we
not discourage commerce; and suffer many political evils?
Shall we not increase that disproportion on the southern states,
which for sometime will operate against us? The southern
states, from having fewer manufactures, will import and consume
more. They will therefore pay more of the imposts.
The more commerce is burdened, the more the disproportion
will operate against them. If direct taxation be mixed with
other taxes, it will be in the power of the general government
to lessen that inequality. But this inequality will be increased
to the utmost extent, if the general government have not this
power.
There is another point of view in which this subject affords
us instruction. The imports will decrease in time of war.
The honorable gentleman who spoke yesterday, said, that
the imposts would be so productive, that there would be no
occasion of laying taxes. I will submit two observations to
will be less, and as I hope we are considering a government
for a perpetual duration, we ought to provide for every future
contingency. At present our importations bear a full proportion
to the full amount of our sales, and to the number of
our inhabitants; but when we have inhabitants enough, our
imposts will decrease; and as the national demands will increase
with our population, our resources will increase as our
wants increase. The other consideration which I will submit
on this part of the subject is this:—I believe that it will be
found in practice, that those who fix the public burdens, will
feel a greater degree of responsibility when they are to impose
them on the citizens immediately, than if they were to say
what sum should be paid by the states. If they exceed the
limits of propriety, universal discontent and clamour will arise.
Let us suppose they were to collect the taxes from the citizens
of America—would they not consider their circumstances?
Would they not attentively consider what could be done by
the citizens at large? Were they to exceed in their demands,
what were reasonable burdens, the people would impute it to
the right source, and look on the imposers as odious.
When I consider the nature of the various objections
brought against this clause, I should be led to think, that the
difficulties were such, that gentlemen would not be able to
get over them, and that the power, as defined in the plan of
the convention, was impracticable. I shall trouble them with,
a few observations on that point:
It has been said that ten men deputed from this state, and
others in proportion from other states, will not be able to
adjust direct taxes, so as to accommodate the various citizens
in thirteen states.
I confess I do not see the force of this observation. Could not
ten intelligent men, chosen from ten districts from this state,
lay direct taxes on a few objects in the most judicious manner?
It is to be conceived, that they would be acquainted with the
situation of different citizens of this country. Can any one
sufficient information? Could not one man of knowledge be
found in a district? When thus selected, will they not be able
to carry their knowledge into the general council? I may say
with great propriety, that the experience of our own legislature
demonstrates the competency of congress to lay taxes wisely.
Our assembly consists of considerably more than a hundred;
yet from the nature of the business, it devolves on a much
smaller number. It is through their sanction, approved of
by all the others. It will be found that there are seldom
more than ten men who rise to high information on this subject.
Our federal representatives, as has been said by the
gentleman [Mr. Marshall] who entered into the subject with
a great deal of ability, will get information from the state
governments. They will be perfectly well informed of the
circumstances of the people of the different states, and the
mode of taxation that would be most convenient for them,
from the laws of the states. In laying taxes, they may even
refer to the state system of taxation. Let it not be forgotten,
that there is a probability, that that ignorance which is complained
of in some parts of America, will be continually
diminishing. Let us compare the degree of knowledge which
the people had in time past to their present information.
Does not our own experience teach us, that the people are
better informed than they were a few years ago? The citizen
of Georgia knows more now of the affairs of New Hampshire,
than he did before the revolution, of those of South Carolina.
When the representatives from the different states are collected
together, to consider this subject, they will interchange
their knowledge with one another, and will have the laws of
each state on the table. Besides this, the intercourse of the
states will be continually increasing. It is now much greater
than before the revolution. My honorable friend, over the
way [Mr. Monroe] yesterday, seemed to conceive, as an insuperable
objection, that if land were made the particular
object of taxation, it would be unjust, as it would exonerate
trade, it would be unjust in discharging the landholders; and
that any exclusive selection would be unequal and unfair.
If the general government were tied down to one object, I
confess the objection would have some force in it. But if this
be not the case, it can have no weight. If it should have a
general power of taxation, they could select the most proper
objects, and distribute the taxes in such a manner, as that
they should fall in a due degree on every member of the
community. They will be limited to fix the proportion of
each state, and they must raise it in the most convenient and
satisfactory manner to the public.
The honorable member considered it as another insuperable
objection, that uniform laws could not be made for thirteen
states, and that dissonance would produce inconvenience and
oppression. Perhaps it may not be found, on due enquiry,
to be so impracticable as he supposes. But were it so, where
is the evil of different states, to raise money for the general
government? Where is the evil of such laws? There are
instances in other countries, of different laws operating in
different parts of the country, without producing any kind of
opposition. The revenue laws are different in England and
Scotland in several respects. Their laws relating to customs
excises and trade, are similar; but those respecting direct
taxation are dissimilar. There is a land tax in England, and
a land tax in Scotland, but the laws concerning them are not
the same. It is much heavier in proportion in the former
than in the latter. The mode of collection is different—yet
this is not productive of any national inconvenience. Were
we to conclude from the objections against the proposed plan,
this dissimilarity, in that point alone, would have involved
those kingdoms in difficulties. In England itself, there is a
variety of different laws operating differently in different
places. I will make another observation on the objection of
my honorable friend. He seemed to conclude, that concurrent
collections under different authorities, were not reducible
the argument would be good. But they must serve one common
master. They must act in concert, or the defaulting
party must bring on itself the resentment of the people. If
the general government be so constructed, that it will not
dare to impose such burdens, as will distress the people, where
is the evil of its having a power of taxation concurrent with
the states? The people would not support it, were it to impose
oppressive burdens. Let me make one more comparison
of the state governments, to this plan. Do not the states impose
taxes for local purposes? Does the concurrent collection
of taxes, imposed by the legislatures for general purposes, and
of levies laid by the counties for parochial and county purposes,
produce any inconvenience or oppression? The collection
of these taxes is perfectly practicable, and consistent
with the views of both parties. The people at large are the
common superior of the state governments, and the general
government. It is reasonable to conclude, that they will avoid
interferences for two causes—to avoid public oppression, and
to render the collections more productive. I conceive they
will be more likely to produce disputes, in rendering it
convenient for the people, than run into interfering regulations.
In the third place I shall consider, whether the power of
taxation to be given the general government be safe: and first,
whether it be safe as to the public liberty in general. It would
be sufficient to remark, that they are, because I conceive, the
point has been clearly established by more than one gentleman
who has spoken on the same side of the question. In the
decision of this question, it is of importance to examine,
whether elections of representatives by great districts of freeholders
be favorable to fidelity in representatives. The greatest
degree of treachery in representatives, is to be apprehended
where they are chosen by the least number of electors; because
there is a greater facility of using undue influence, and
because the electors must be less independent. This position
to which appeals are so often made, and sometimes instructively.
Who are the most corrupt members in parliament? Are
they not the inhabitants of small towns and districts? The
supporters of liberty are from the great counties. Have we
not seen that the representatives of the city of London, who
are chosen by such thousands of voters, have continually
studied and supported the liberties of the people, and opposed
the corruption of the crown? We have seen continually that
most of the members in the ministerial majority are drawn
from small circumscribed districts. We may therefore conclude,
that our representatives being chosen by such extensive
districts, will be upright and independent. In proportion
as we have security against corruption in representatives we
have security against corruption from every other quarter
whatsoever.
I shall take a view of certain subjects which will lead to
some reflections, to quiet the minds of those gentlemen who
think that the individual governments will be swallowed up
by the general government. In order to effect this, it is
proper to compare the state governments to the general government,
with respect to reciprocal dependence, and with
respect to the means they have of supporting themselves, or
of encroaching on one another. At the first comparison we
must be struck with these remarkable facts. The general
government has not the appointment of a single branch of the
individual governments, or of any officers within the states, to
execute their laws. Are not the states integral parts of the
general government? Is not the president chosen under the
influence of the state legislatures? May we not suppose that
he will be complaisant to those from whom he has his appointment,
and from whom he must have his re-appointment?
The senators are appointed altogether by the legislatures.
My honorable friend apprehended a coalition between the
president, senate, and house of representatives, against the
the component parts.
A coalition is not likely to take place, because its component
parts are heterogeneous in their nature. The house of representatives
is not chosen by the state governments, but under
the influence of those who compose the state legislature. Let
us suppose ten men appointed to carry the government into
effect, there is every degree of certainty, that they would be
indebted for their re-election to the members of the legislatures.
If they derive their appointment from them, will they
not execute their duty to them? Besides this, will not the
people (whose predominant interest will ultimately prevail)
feel great attachment to the state legislatures? They have
the care of all local interests—those familiar domestic objects,
for which men have the strongest predilection. The general
government on the contrary, has the preservation of the
aggregate interest of the union—objects, which being less
familiar, and more remote from men's notice have a less
powerful influence on their minds. Do we not see great and
natural attachments arising from local considerations? This
will be the case in a much stronger degree in the state governments,
than in the general government. The people will be
attached to their state legislatures from a thousand causes;
and into whatever scale the people at large will throw themselves,
that scale will preponderate.
Did we not perceive, in the early stages of the war, when
congress was the idol of America, and when in pursuit of the
object most dear to America, that they were attached to their
states? Afterwards the whole current of their affection was
to the states, and would be still the case, were it not for the
alarming situation of America.
At one period of the congressional history, they had the
power to trample on the states. When they had that fund
of paper money in their hands, and could carry on all their
measures without any dependence on the states, was there
any disposition to debase the state governments? All that
administration of the government, they still retained unimpaired.
There was no attempt to diminish it.
I am led by what fell from my honorable friend yesterday
to take this supposed combination in another view. Is it supposed,
that the influence of the general government will
facilitate a combination between the members? Is it supposed,
that it will preponderate against that of the state governments?
The means of influence consist in having the
disposal of gifts and emoluments, and in the number of persons
employed by, and dependent upon a government. Will any
gentleman compare the number of persons, which will be
employed in the general government, with the number of those
which will be in the state governments? The number of
dependants upon the state governments will be infinitely
greater than those on the general government. I may say
with truth, that there never was a more economical government
in any age or country, nor which will require fewer
hands, or give less influence.
Let us compare the members composing the legislative,
executive and judicial powers in the general government, with
these in the states, and let us take into view the vast number
of persons employed in the states; from the chief officers to
the lowest, we will find the scale preponderating so much in
favor of the states, that while so many persons are attached
to them, it will be impossible to turn the balance against them.
There will be an irresistible bias towards the state governments.
Consider the number of militia officers, the number of justices
of the peace, the number of the members of the legislatures,
and all the various officers for districts, towns and corporations,
all intermixing with, and residing among the people at
large. While this part of the community retains their affection
to the state governments, I conceive that the fact will be,
that the state governments, and not the general government,
will preponderate. It cannot be contradicted that they have
as the honorable gentleman—but my fears are on the other
side. Experience, I think, will prove (though there be no
infallible proof of it here) that the powerful and prevailing
influence of the states, will produce such attention to local
considerations, as will be inconsistent with the advancement
of the interest of the union. But I choose rather to indulge
my hopes than fears, because I flatter myself, if inconveniences
should result from it, that the clause which provides
amendments, will remedy them. The combination of powers
vested in those persons, would seem conclusive in favor of the
states.
The powers of the general government relate to external
objects, and are but few. But the powers in the states relate
to those great objects which immediately concern the prosperity
of the people. Let us observe also, that the powers
in the general government are those which will be exercised
mostly in time of war, while those of the state governments
will be exercised in time of peace. But I hope the time of
war will be little, compared to that of peace. I should not complete
the view which ought to be taken of this subject, without
making this additional remark, that the powers vested in
the proposed government, are not so much an augmentation
of powers in the general government, as a change rendered
necessary, for the purpose of giving efficacy to those which
were vested in it before. It cannot escape any gentleman,
that this power in theory, exists in the confederation as fully
as in this constitution. The only difference is this, that now
they tax states, and by this plan they will tax individuals.
There is no theoretic difference between the two. But in practice
there will be an infinite difference between them. The
one is an ineffectual power: the other is adequate to the purpose
for which it is given. This change was necessary for the
public safety.
Let us suppose, for a moment, that the acts of congress
requiring money from the states, had been as effectual as the
complete compliance, will any gentleman say, that as far as
we can judge from past experience, the state governments
would have been debased, and all consolidated and incorporated
in one system? My imagination cannot reach it. I
conceive, that had those acts that effect which all laws ought
to have, the states would have retained their sovereignty.
It seems to be supposed, that it will introduce new expenses
and burdens on the people. I believe it is not necessary here
to make a comparison between the expenses of the present
and of the proposed government. All agree that the general
government ought to have power for the regulation of commerce.
I will venture to say, that very great improvements,
and very economical regulations will be made. It will be a
principal object to guard against smuggling, and such other
attacks on the revenue as other nations are subject to. We
are now obliged to defend against those lawless attempts, but
from the interfering regulations of different states, with little
success. There are regulations in different states which are
unfavorable to the inhabitants of other states, and which
militate against the revenue. New York levies money from
New Jersey by her imposts. In New Jersey, instead of cooperating
with New York, the legislature favors violations
on her regulations. This will not be the case when uniform
regulations will be made.
Requisitions, though ineffectual, are unfriendly to economy.
When requisitions are submitted to the states, there are near
2,500 or 3,000 persons deliberating on the mode of payment.
All these, during their deliberation, receive public pay. A
great proportion of every session, in every state, is employed
to consider whether they will pay at all, and in what mode.
Let us suppose 1500 persons are deliberating on this subject.
Let any one make a calculation—it will be found that a very
few days of their deliberation will consume more of the public
money, than one year of that general legislature. This is not
all, Mr. Chairman. When general powers will be vested in
which is seen in the legislation of the states. The consequence
will be a great saving of expense and time. There is another
great advantage which I will but barely, mention. The
greatest calamity to which the United States can be subject,
is a vicissitude of laws, and continual shifting and changing
from one object to another, which must expose the people to
various inconveniences. This has a certain effect, of which
sagacious men always have, and always will make an advantage.
From whom is advantage made? From the industrious
farmers and tradesmen who are ignorant of the means
of making such advantages. The people will not be exposed
to these inconveniences under an uniform and steady course
of legislation. But they have been so heretofore. The history
of taxation of this country is so fully and well known to every
member of this committee, that I shall say no more of it.
We have hitherto discussed the subject very irregularly. I
dare not dictate to any gentleman, but I hope we shall pursue
that mode of going through the business, which the house
resolved. With respect to a great variety of arguments made
use of, I mean to take notice of them when we come to those
parts of the constitution to which they apply. If we exchange
this mode, for the regular way of proceeding, we can finish it
better in one week than one month.
The notes for this speech are found in the Mad. MSS.:
Direct taxation necessary—practicable—safe—œconomical
for punctuality—credit—suppose war & most to be feared &c—
free ships free goods.Conditin. taxn. produce failure from
distrust of concurrent exertions amg. Sts who will deliberate
Some Sts less in danger & less willing to exert.
Contests between Congs & Sts.
effect of punishment & St. on side of people. Represents. of
particular oppose 1st in Congs. then elsewhere.case of partial payments within time.
prevents whole burden on imposts & S. Sts.
imposts not eno. now—& decrease in war—& manufactures
secure responsibility—when not to fix sum only—but find means
I. necessary
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
10 or 15 men eno. for this State
aid of State laws—
increase of mutual knowledge.
land—pole—property
uniformity not essential—Engd. & Scotd.—local customs.
concurrent collections—as both act for people.
II. practicability.
1.
2.
3.
4.
5.
6.
to public liberty—Reps. of large distrcts. as London &c.
comparative dependence & influence of Genl. & St. Govts.
No member of St. Govt. elected by Genl Govt.
Presidt. elected under influence of St Legislre.
Senate appd. by St: Legislre.—Col. Monroe's idea & inconsistency
here—H. of Reps attached to Sts more ye. Senate—
people of Sts. attached to St. Govt.—
compare no. of appointms.
compare powers—
powers of Congs. same only as Confedn. substantiated.—care of
Congs. [illegible] paper money
III. Safe.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
as to customs
as in place of 1500 or 2000. members
—as less mutable—& less exposed to speculators &c.
IV. Œconomical.
1.
2.
3.
JUNE 12—POWER TO LAY TAXES.
Mr. Madison.—Mr. Chairman, finding, Sir, that the clause
more immediately under consideration still meets with the
disapprobation of the honorable gentleman over the way [Mr.
Grayson] and finding that the reasons of the opposition as
farther developed, are not satisfactory to myself and others
who are in favor of the clause, I wish that it may meet with
the most thorough and complete investigation. I beg the attention
of the committee, in order to obviate what fell from
the honorable gentleman. He set forth, that by giving up the
insist on requisitions being made on the states, and then, if
they be not complied with, congress shall lay direct taxes, by
way of penalty. Let us consider the dilemma which arises
from this doctrine. Either requisitions will be efficacious or
they will not. If they will be efficacious, then I say, Sir, we
gave up every thing as much as by direct taxation.
The same amount will be paid by the people as by direct
taxes. If they be not efficacious, where is the advantage of
this plan? In what respect will it relieve us from the inconveniences
which we have experienced from requisitions? The
power of laying direct taxes by the general government is
supposed by the honorable gentleman to be chimerical and
impracticable. What is the consequence of the alternative
he proposes? We are to rely upon this power to be ultimately
used as a penalty to compel the states to comply. If it be
chimerical and impracticable, in the first instance, it will be
equally so when it will be exercised as a penalty. A reference
was made to concurrent executions as an instance of the possibility
of interference between the two governments.
(Here Mr. Madison spoke so low that he could not be distinctly
heard.)
This has been experienced under the state governments
without involving any inconvenience. But it may be answered,
that under the state governments, concurrent executions
cannot produce the inconvenience here dreaded, because
they are executed by the same officer. It is not in the power
of the general government to employ the state officers. Is
nothing to be left to future legislation, or must every thing
be immutably fixed in the constitution? Where exclusive
power is given to the union, there can be no interference.
Where the general and state legislatures have concurrent
power, such regulations will be made, as shall be found necessary
to exclude interferences and other inconveniences. It
will be their interest to make regulations.
It has been said, that there is no similarity between petty
points of view there is a great dissimilarity, but in others, there
is a striking similarity between them, which illustrates what
is before us. Have we not seen in our own country (as
has been already suggested in the course of the debates)
concurrent collections of taxes going on at once, without producing
any inconvenience? We have seen three distinct collections
of taxes, for three distinct purposes. Has it not been
possible for collections of taxes, for parochial, county and
state purposes, to go on at the same time? Every gentleman
must know, that this is now the case, and though there be a
subordination in these cases which will not be in the general
government, yet in practice it has been found, that these
different collections have been concurrently carried on, with
convenience to the people, without clashing with one another,
and without deriving their harmony from the circumstance
of being subordinate to one legislative body. The taxes will
be laid for different purposes. The members of the one government
as well as of the other, are the agents of, and subordinate
to, the people. I conceive that the collections of the
taxes of the one will not impede those of the other, and that
there can be no interference. This concurrent collection appears
to me neither chimerical nor impracticable.
He compares resistance of the people to collectors, to refusal
of requisitions. This goes against all government. It is as
much as to urge, that there should be no legislature. The
gentlemen who favored us with their observations on this
subject, seemed to have reasoned on a supposition, that the
general government was confined by the paper on your table
to lay general uniform taxes. Is it necessary that there
should be a tax on any given article throughout the United
States? It is represented to be oppressive, that the states
who have slaves and make tobacco, should pay taxes on these
for federal wants, when other states who have them not, would
escape. But does the constitution on the table admit of this?
On the contrary, there is a proportion to be laid on each state
be selected in each state. If one article in any state should
be deficient, it will be laid on another article. Our state is
secured on this foundation. Its proportion will be commensurate
to its population. This is a constitutional scale, which
is an insuperable bar against disproportion, and ought to
satisfy all reasonable minds. If the taxes be not uniform, and
the representatives of some states contribute to lay a tax of
which they bear no proportion, is not this principle reciprocal?
Does not the same principle hold in our state government in
some degree? It has been found inconvenient to fix on uniform
objects of taxation in this state, as the back parts are
not circumstanced like the lower parts of the country. In
both cases the reciprocity of the principle will prevent a disposition
in one part to oppress the other. My honorable
friend seems to suppose that congress, by the possession of
this ultimate power as a penalty, will have as much credit
and will be as able to procure any sums, on any emergency,
as if they were possessed of it in the first instance, and that
the votes of congress will be as competent to procure loans, as
the votes of the British commons. Would the votes of the
British house of commons have that credit which they now
have, if they were liable to be retarded on their operation,
and perhaps, rendered ultimately nugatory, as those of congress
must be by the proposed alternative? When their
vote passes, it usually receives the concurrence of the other
branch, and it is known that there is sufficient energy in the
government, to carry it into effect.
But here the votes of congress are in the first place dependent
on the compliance of thirteen different bodies, and after
non-compliance, are liable to be opposed and defeated, by the
jealousy of the states against the exercise of this power, and
by the opposition of the people which may be expected, if this
power be exercised by congress after partial compliances.
These circumstances being known, congress could not command
one shilling. My honorable friend seems to think that
burdens upon posterity. I will not contest the equity of this
reasoning, but I must say that good policy as well as views of
economy, strongly urge us even to distress ourselves to comply
with our most solemn engagements. We must make effectual
provision for the payment of the interest of our public debts.
In order to do justice to our creditors, and support our credit
and reputation, we must lodge power some where or other for
this purpose. As yet the United States have not been able
by any energy contained in the old system, to accomplish
this end.
Our creditors have a right to demand the principal, but
would be satisfied with a punctual payment of the interest.
If we have been unable to pay the interest, much less shall we
be able to discharge the principal. It appears to me that the
whole reasoning used on this occasion shews, that we ought
to adopt this system to enable us to throw our burdens on
posterity. The honorable member spoke of the decemviri at
Rome as having some similitude to the ten representatives
who are to be appointed by this state. I can see no point of
similitude here, to enable us to draw any conclusion. For
what purpose were the decemviri appointed? They were
invested with a plenipotentiary commission to make a code
of laws. By whom were they appointed? By the people at
large? My memory is not infallible, but it tells me they were
appointed by the senate, I believe in the name of the people.
If they were appointed by the senate, and composed of the
most influential characters among the nobles, can any thing
be inferred from that against our federal representatives?
Who made a discrimination between the nobles and the people?
The senate.
Those men totally perverted the powers which were given
them for the purpose above specified, to the subversion of the
public liberty. Can we suppose that a similar usurpation
might be made, by men appointed in a totally different manner?
As their circumstances were totally dissimilar, I conceive that
I do not thoroughly comprehend the reasoning of
my honorable friend, when he tells us, that the federal government
will predominate, and that the state interest will be
lost, when at the same time he tells us, that it will be a faction
of seven states. If seven states will prevail, as states, I
conceive that state influence will prevail. If state influence
under the present feeble government has prevailed, I think
that a remedy ought to be introduced, by giving the general
government power to suppress it.
He supposed that my argument with respect to a future
war between Great Britain and France was fallacious. The
other nations of Europe have acceded to that neutrality, while
Great Britain opposed it. We need not expect in case of such
a war, that we should be suffered to participate in the profitable
emoluments of the carrying trade, unless we were in a
respectable situation. Recollect the last war. Was there
ever a war in which the British nation stood opposed to so
many nations? All the belligerent nations in Europe, with
nearly one half of the British empire, were united against it.
Yet that nation, though defeated, and humbled beyond any
previous example, stood out against this. From her firmness
and spirit in such desperate circumstances, we may divine
what her future conduct may be.
I did not contend that it was necessary for the United States
to establish a navy for that sole purpose, but instanced it as
one reason, out of several, for rendering ourselves respectable.
I am no friend to naval or land armaments in time of peace,
but if they be necessary, the calamity must be submitted to.
Weakness will invite insults. A respectable government will
not only entitle us to a participation of the advantages which
are enjoyed by other nations but will be a security against
attacks and insults. It is to avoid the calamity of being
obliged to have large armaments that we should establish this
government. The best way to avoid danger, is to be in a
capacity to withstand it.
The impost, we are told, will not diminish, because the emigrations
to the westward will prevent the increase of population.
He has reasoned on this subject justly to a certain
degree. I admit that the imposts will increase, till population
becomes so great, as to compel us to recur to manufactures.
The period cannot be very far distant, when the unsettled
parts of America will be inhabited. At the expiration of
twenty-five years hence, I conceive that in every part of the
United States, there will be as great a population as there is
now in the settled parts. We see already, that in the most
populous parts of the union, and where there is but a medium,
manufactures are beginning to be established. Where this is
the case the amount of importation will begin to diminish.
Although the impost may even increase during the term of
twenty-five years, yet when we are preparing a government
for perpetuity, we ought to found it on permanent principles
and not on those of a temporary nature.
Holland is a favorite quotation with honorable members on
the other side of the question. Had not their sentiments been
discovered by other circumstances, I should have concluded
from their reasonings on this occasion, that they were friends
of the constitution. I should suppose that they had forgotten
which side of the question they were on. Holland has
been called a republic, and a government friendly to liberty.
Though it may be greatly superior to some other governments
in Europe, still it is not a republic, or a democracy.
Their legislature consists in some degree of men who legislate
for life. Their councils consist of men who hold their offices
for life, who fill up offices and appoint their salaries themselves.
The people have no agency mediate or immediate in the government.
If we look at their history we shall find, that every
mischief which has befallen them, has resulted from the existing
confederacy. If the stadtholder has been productive of
mischiefs—if we ought to guard against such a magistrate
more than any evil, let me beseech the honorable gentleman
to take notice of what produced that, and those troubles
The weakness of their confederacy produced both.
When the French arms were ready to overpower their republic,
and were feeble in the means of defence, which was
principally owing to the violence of parties, they then appointed
a stadtholder, who sustained them. If we look at
more recent events, we shall have a more pointed demonstration
that their political infelicity arises from the imbecility
of their government. In the late disorders the states were
almost equally divided, three provinces on one side, three on
the other, and the other divided. One party inclined to the
Prussians, and the other to the French. The situation of
France did not admit of their interposing immediately in
their disputes by an army, that of the Prussians did. A powerful
and large army marched into Holland and compelled the
other party to surrender. We know the distressing consequences
to the people. What produced those disputes and
the necessity of foreign interference, but the debility of their
confederacy? We may be warned by their example, and
shun their fate, by removing the causes which produced their
misfortunes. My honorable friend has referred to the transaction
of the federal council, with respect to the navigation
of the Mississippi. I wish it was consistent with delicacy
and prudence to lay a complete view of the whole matter before
this committee. The history of it is singular and curious,
and perhaps its origin ought to be taken into consideration.
I will touch on some circumstances, and introduce nearly
the substance of most of the facts relative to it, that I may
not seem to shrink from explanation. It was soon perceived,
sir, after the commencement of the war with Britain, that
among the various objects that would affect the happiness
of the people of America, the navigation of the Mississippi
was one. Throughout the whole history of foreign negotiation,
great stress was laid on its preservation. In the time
of our greatest distresses, and particularly when the southern
states were the scene of war, the southern states cast their
supposed that assistance might be obtained for the relinquishment
of that navigation. It was thought that for so substantial
a consideration, Spain might be induced to afford
decisive succour. It was opposed by the northern and
eastern states. They were sensible that it might be dangerous
to surrender this important right, particularly to the inhabitants
of the western country. But so it was, that the southern
states were for it, and the eastern states opposed to it. Since
obtaining that happy peace, which secures to us all our
claims, this subject has been taken again into consideration,
and deliberated upon in the federal government. A temporary
relinquishment has been agitated. Several members
from the different states, but particularly from the northern,
were for a temporary surrender, because it would terminate
disputes, and at the end of the short period for which it was
to be given, the right would revert, of course, to those who
had given it up. And for this temporary surrender some
commercial advantages were offered. For my part, I consider
this measure, though founded on considerations plausible and
honorable, was yet not justifiable, but on grounds of inevitable
necessity. I must declare in justice to many characters who
were in congress, that they declared that they never would
enter into the measure, unless the situation of the United
States was such as could not prevent it.
I suppose that the adoption of this government will be
favorable to the preservation of the right to that navigation.
Emigration will be made from those parts of the United
States which are settled, to those parts which are unsettled.
If we afford protection to the western country, we will see it
rapidly peopled. Emigrations from some of the northern
states have been lately increased. We may conclude, as has
been said, by a gentleman on the same side [Mr. Nicholas],
that those who emigrate to that country, will leave behind
them all their friends and connections as advocates for this
right
What was the cause of those states being the champions of
this right when the southern states were disposed to surrender
it? The preservation of this right will be for the general interest
of the union. The western country will be settled from
the north as well as the south, and its prosperity will add
to the strength and security of the union. I am not able to
recollect all those circumstances which would be necessary to
give gentlemen a full view of the subject. I can only add,
that I conceive that the establishment of the new government
will be the best possible means of securing our rights as well
in the western parts, as elsewhere. I will not sit down till I
make one more observation on what fell from my honorable
friend. He says, that the true difference between the states
lies in this circumstance—that some are carrying states, and
others productive, and that the operation of the new government
will be, that there will be a plurality of the former to
combine against the interest of the latter, and that consequently
it will be dangerous to put it in their power to do so.
I would join with him in sentiments, if this were the case.
Were this within the bounds of probability, I should be
equally alarmed, but I think that those states, which are contradistinguished
as carrying states, from the non-importing
states, will be but few. I suppose the southern states will be
considered by all, as under the latter description. Some other
states have been mentioned by an honorable member on the
same side, which are not considered as carrying states. New
Jersey and Connecticut can by no means be enumerated
among the carrying states. They receive their supplies
through New York. Here then is a plurality of non-importing
states. I could add another, if necessary. Delaware,
though situated upon the water, is upon the list of non-carrying
states. I might say that a great part of New Hampshire is
so. I believe a majority of the people of that state receive
their supplies from Massachusetts, Rhode Island, and Connecticut.
Might I not add all those states which will be admitted
hereafter into the union? These will be non-carrying
will attempt to combine against the rest. This objection
must therefore fall to the ground. My honorable friend has
made several other remarks, but I will defer saying any more
till we come to those parts to which his objections refer.
JUNE 12—POWER TO LAY TAXES—JEFFERSON'S VIEWS—RELIGIOUS
FREEDOM—TREATY-MAKING POWER.
Mr. Madison.—Mr. Chairman, pardon me for making a few
remarks on what fell from the honorable gentleman last up
[Henry]. I am sorry to follow the example of gentlemen in
deviating from the rule of the house.—But as they have taken
the utmost latitude in their objections, it is necessary that
those who favor the government should answer them. But I
wish as soon as possible to take up the subject regularly. I
will therefore take the liberty to answer some observations
which have been irregularly made, though they might be
more properly answered when we come to discuss those parts
of the constitution to which they respectively refer. I will,
however, postpone answering some others till then. If there
be that terror in direct taxation, that the states would comply
with requisitions to guard against the federal legislature; and
if, as gentlemen say, this state will always have it in her power
to make her collections speedily and fully, the people will be
compelled to pay the same amount as quickly and punctually
as if raised by the general government.
It has been amply proved, that the general government can
lay taxes as conveniently to the people as the state governments,
by imitating the state systems of taxation. If the
general government have not the power of collecting its own
revenues, in the first instance, it will be still dependent on the
state governments in some measure: and the exercise of this
power, after refusal, will be inevitably productive of injustice
and confusion, if partial compliances be made before it is
in the smallest degree, the alternative proposed will impair
the efficacy of the government, and will perpetually endanger
the tranquillity of the union.
The honorable member's objection with respect to requisitions
of troops will be fully obviated at another time. Let it
suffice now to say, that it is altogether unwarrantable, and
founded upon a misconception of the paper before you. But
the honorable member, in order to influence our decision, has
mentioned the opinion of a citizen [Jefferson] who is an ornament
to this state. When the name of this distinguished
character was introduced, I was much surprised. Is it come
to this, then, that we are not to follow our own reason? Is
it proper to introduce the opinions of respectable men, not
within these walls? If the opinion of an important character
were to weigh on this occasion, could we not adduce a character
equally great on our side? Are we, who (in the honorable
gentleman's opinion) are not to be governed by an erring
world, now to submit to the opinion of a citizen beyond the
Atlantic? I believe, that were that gentleman now on this
floor, he would be for the adoption of this constitution. I
wish his name had never been mentioned. I wish every
thing spoken here, relative to his opinion, may be suppressed
if our debates should be published. I know that the delicacy
of his feelings will be wounded, when he will see in print what
has and may be said, concerning him on this occasion. I am,
in some measure, acquainted with his sentiments on this
subject. It is not right for me to unfold what he has informed
me. But I will venture to assert, that the clause now discussed,
is not objected to by Mr. Jefferson. He approves of it,
because it enables the government to carry on its operations.
—He admires several parts of it, which have been reprobated
with vehemence in this house. He is captivated with the
equality of suffrage in the senate, which the honorable gentleman
[Mr. Henry] calls the rotten part of this constitution.
But, whatever be the opinion of that illustrious citizen,
introducing it here.
The honorable member has introduced the subject of religion.
Religion is not guarded—there is no bill of rights
declaring that religion should be secure. Is a bill of rights a
security for religion? Would the bill of rights, in this state,
exempt the people from paying for the support of one particular
sect, if such sect were exclusively established by law? If
there were a majority of one sect, a bill of rights would be a
poor protection for liberty. Happily for the states, they
enjoy the utmost freedom of religion. This freedom arises
from that multiplicity of sects, which pervades America, and
which is the best and only security for religious liberty in any
society. For where there is such a variety of sects, there
cannot be a majority of any one sect to oppress and persecute
the rest. Fortunately for this commonwealth, a majority of
the people are decidedly against any exclusive establishment
—I believe it to be so in the other states. There is not a
shadow of right in the general government to intermeddle
with religion. Its least interference with it, would be a most
flagrant usurpation. I can appeal to my uniform conduct on
this subject, that I have warmly supported religious freedom.
It is better that this security should be depended upon from
the general legislature, than from one particular state. A
particular state might concur in one religious project. But
the United States abound in such a variety of sects, that it is
a strong security against religious persecution, and it is sufficient
to authorise a conclusion, that no one sect will ever be
able to outnumber or depress the rest.
I will not travel over that extensive tract, which the
honorable member has traversed. I shall not now take notice
of all his desultory objections. As occasions arise, I shall
answer them.
It is worthy of observation, on this occasion, that the
honorable gentleman himself, seldom fails to counteract the
arguments of gentlemen on that side of the question. For
from the number of its members, will make an addition to
the public expense, too formidable to be borne, and yet he
and other gentlemen on the same side, object that the number
of representatives is too small, though ten men are more than
we are entitled to under the existing system! How can these
contradictions be reconciled? If we are to adopt any efficient
government at all, how can we discover or establish such a
system, if it be thus attacked? Will it be possible to form a
rational conclusion upon contradictory principles? If arguments
of a contradictory nature were to be brought against
the wisest and most admirable system to the formation of
which human intelligence is competent it never could stand
them.
He has acrimoniously inveighed against the government,
because such transactions as congress think require secrecy,
may be concealed; and particularly those which relate to
treaties. He admits that when a treaty is forming, secrecy is
proper; but urges that when actually made, the public ought
to be made acquainted with every circumstance relative to it.
The policy of not divulging the most important transactions,
and negociations of nations, such as those which relate to warlike
arrangements and treaties, is universally admitted. The
congressional proceedings are to be occasionally published,
including all receipts and expenditures of public money, of
which no part can be used but in consequence of appropriations
made by law. This is a security which we do not enjoy
under the existing system. That part which authorises the
government to withhold from the public knowledge what
in their judgement may require secrecy, is imitated from
the confederation; that very system which the gentleman
advocates.
No treaty has been formed, and I will undertake to say.
that none will be formed under the old system, which will
secure to us the actual enjoyment of the navigation of the
Mississippi. Our weakness precludes us from it. We are
that we shall be able to avail ourselves fully of that right.
I most conscientiously believe, that it will be far better
secured under the new government, than the old, as we will
be more able to enforce our right. The people of Kentucky
will have an additional safeguard from the change of system.
The strength and respectability of the union will secure them
in the enjoyment of that right, till that country becomes
sufficiently populous. When this happens, they will be able
to retain it in spite of every opposition.
I can never admit that seven states are disposed to surrender
that navigation. Indeed it never was the case. Some
of their most distinguished characters are decidedly opposed
to its relinquishment. When its cession was proposed by the
southern states, the northern states opposed it. They still
oppose it. New Jersey directed her delegates to oppose it,
and is strenuously against it. The same sentiments pervade
Pennsylvania: at least I am warranted to say so from the
best information which I have. Those states, added to the
southern states, would be a majority against it.
The honorable gentleman, to obviate the force of my observations
with respect to concurrent collection of taxes under
different authorities, said, that there was no interference between
the concurrent collections of parochial, county, and
state taxes, because they all irradiated from the same centre,
but that this was not the case with the general government.
To make use of the gentleman's own terms, the concurrent
collections under the authorities of the general government
and state governments, all irradiate from the people at large.
The people is their common superior. The sense of the people
at large, is to be the predominating spring of their actions.
This is a sufficient security against interference.
Our attention was called to our commercial interest, and at
the same time the landed interest was said to be in danger. If
those ten men who were to be chosen, be elected by landed
men, and have land themselves, can the electors have any
why are we alarmed about the carrying trade? Why is it
said, that the carrying states will preponderate, if commerce
be in danger? With respect to speculation, I will remark that
stock-jobbing has prevailed, more or less, in all countries,
and ever will, in some degree, notwithstanding any exertions
to prevent it. If you judge from what has happened under
the existing system, any change would render a melioration
probable.
JUNE 13—MISSISSIPPI NEGOTIATIONS.[65]
Mr. Madison.—Mr. Chariman, it is extremely disagreeable
to me to enter into this discussion, as it is foreign to the
some, lead to sully the reputation of our public councils. As
far as my memory will enable me, I will develope the subject.
We will not differ with one another with respect to facts:
perhaps we may differ with respect to principles. I will take
the liberty to observe, that I was led before to make some
observations, which had no relation to the subject under
consideration, as relative to the western country, to obviate
suggestions of gentlemen, which seemed to me to be groundless.
I stated that there was a period when the southern
states were advocates for the alienation or suspension of the
right to the Mississippi (I will not say which), and the eastern
states were against both. I mention this to shew,
that there was no disposition in that part, to surrender that
right or dispose of that country. I do suppose that the
fishery had its influence on those states. No doubt it was
the case.
For that, and other reasons, they still continue against the
alienation. For it might lessen the security of retaining the
fishery. From the best information, it never was the sense
of the people at large, or the prevailing characters of the
eastern states, to approve of the measure. If interest, Sir,
should continue to operate on them, I humbly conceive, that
they will derive more advantage from holding the Mississippi,
than even the southern states. For if the carrying business be
their natural province, how can it be so much extended and
advanced, as by giving the encouragement to agriculture in
the western country, and having the emolument of carrying
their produce to market? The carrying trade must depend
on agriculture for its support in a great measure. In what
place is agriculture so capable of improvement and great extension,
as in the western country? But whatever considerations
may prevail in that quarter or any other, respecting their
interest, I think we may fairly suppose that the consideration
which the honorable member mentioned, and which has been
repeated, I mean the emigrations which are going on to the
it may produce with respect to us. Emigrations are now
going on from that quarter as well as from this state.
I readily confess that neither the old confederation, nor
the new constitution, involves a right to give the navigation
of the Mississippi. It is repugnant to the law of nations.
I have always thought and said so. Although the right be
denied, there may be emergencies which will make it necessary
to make a sacrifice. But there is a material difference between
emergencies of safety in time of war, and those which
may relate in mere commercial regulations. You might on
solid grounds deny in peace, what you give up in war. I do
not conceive, however, that there is that extreme aversion in
the minds of the people of the eastern states, to emigrate to
the westward, which was insinuated by my honorable friend.
Particular citizens, it cannot be doubted, may be averse to it.
But it is the sense of the people at large, which will direct the
public measures. We find, from late arrangements made between
Massachusetts and New York, that a very considerable
country to the westward of New York, was disposed of to
Massachusetts, and by Massachusetts, to some individuals, to
conduct emigrants to that country.
There were seven states who thought it right to give up the
navigation of the Mississippi for twenty-five years, for several
reasons which have been mentioned. As far as I can recollect,
it was nearly as my honorable friend said. But they had no
idea of absolutely alienating it. I think one material consideration
which governed them was, that there were grounds
of serious negotiation between Great Britain and Spain, which
might bring on a coalition between those nations, which
might enable them to bind us on different sides, permanently
withhold that navigation from us, and injure us in other
respects materially. The temporary cession, it was supposed,
would fix the permanent right in our favor, and prevent that
dangerous coalition. It is but justice to myself to say, that
however plausible the reasons urged for its temporary cession
have uniformly disapproved of it, and do now.
With respect to the secretary of foreign affairs [Jay], I am
intimately connected with him. I shall say nothing of his
abilities and attachment to his country. His character is
established in both respects. He has given a train of reasoning
which governed him in his project. If he was mistaken,
his integrity and probity, more than compensate for the error.
I am led to think there is no settled disposition in seven states
to give up that object, because New Jersey, on a further consideration
of the subject, actually gave instructions to her
delegates to oppose it. And what was the ground of this?
I do not know the extent and particular reasons of her instructions.
But I recollect, that a material consideration
was, that the cession of that river, would diminish the value
of the western country, which was a common fund for the
United States, and would consequently, tend to impoverish
their public treasury. These, Sir, were rational grounds.
Give me leave, Sir, as I am upon this subject, and as the
honorable gentleman has raised a question, whether it be not
more secure under the old than the new constitution—to
differ from him. I shall enter into the reasoning which, in
my mind, renders it more secure under the new system.
Two thirds of the senators present, (which) will be nine states,
(if all attend to their duty) and the president must concur
in every treaty which can be made. Here are two distinct
and independent branches, which must agree to every treaty;
under the existing system, two thirds of the states must
concur to form a treaty. But it is but one body. Gentlemen
may reason and conclude differently on this subject. I own
that as far as I have any rights, which are but trivial, I would
rather trust them to the new, than the old government. Besides,
let me observe, that the house of representatives will
have a material influence on the government, and will be
additional security in this respect: but there is one thing
which he mentioned, which merits attention. If commercial
in the new system, than in the old. For, in the house of
representatives, it will have little or no influence. They are
drawn from the landed interest; taken from the states at
large, and many of them from the western country. Whereas
the present members of congress have been taken from the
Atlantic side of the continent. When we calculate the
dangers that may arise in any case, we judge from the rules
of proportion and chances of numbers. The people at large
choose those who elect the president. The weight of population
will be to the southward, if we include the western
country. There will then be a majority of the people in favor
of this right. As the president must be influenced by the
sense and interest of his electors, as far as it depends on him
(and his agency in making treaties is equal to that of the
senate) he will oppose the cession of that navigation. As far
as the influence of the representative goes, it will also operate
in favor of this right.—The power of treaties is not lodged in
the senators of particular states. Every state has an equal
weight. If ten senators can make a treaty, ten senators can
prevent one from being made. It is from a supposition, that
all the southern delegates will be absent, that ten senators or
two thirds of a majority, can give up this river. The possibility
of absence operates equally as much against the northern
states. If one fifth of the members present think the measure
erroneous the votes of the states are to be taken upon it, and
entered on the journals. Every gentlemen here ought to
recollect, that this is some security, as the people will thereby
know those who advocate iniquitous measures. If we consider
the number of changes in the members of the government,
we will find it another security. But after all, Sir,
what will this policy signify, which tends to surrender the navigation
of the Mississippi? Resolutions of congress to retain
it, may be repeated, and re-echoed from every part of
United States. It is not resolutions of this sort, which
the people of this country wish for. They want an actual
Similar resolutions have been taken under the existing system,
on many occasions. But they have been, heretofore, and
will be hereafter, in my opinion, nugatory and fruitless unless
a change takes place, which will give energy to the acts
of the government.
I will take the liberty to touch once more on the several
considerations which produced the question, because perhaps
the committee may not yet thoroughly comprehend it. In
justice to those gentlemen who concluded in favor of the
temporary cession, I mention their reasons, although I think
the measure wrong. The reasons for so doing under the old
system, will be done away by the new system. We could not,
without national dishonor, assert our right to the Mississippi,
and suffer any other nation to deprive us of it. This consideration,
with others before mentioned, influenced them.
I admit it was wrong. But it is sufficient to prove that they
acted on principles of integrity. Will they not be bound by
honor and conscience, when we are able to enjoy and retain
our right, not to give it up, or suffer it to be interrupted? A
weak system produced this project. A strong system will
remove the inducement. For may we not suppose it will be
reversed by a change of system? I was called up to say, what
was its present situation. There are some circumstances
within my knowledge, which I am not at liberty to communicate
to this house. I will not go farther than to answer the
objections of gentlemen. I wish to conceal no circumstance,
which I can relate consistently with my duty. As to matters
of fact, I have advanced nothing which I presume will be contradicted.
On matters of opinion, we may differ. Were
I at liberty, I could develope some circumstances, which
would convince this house, that this project will never be
revived in congress, and that therefore no danger is to be
apprehended.
JUNE 14—ELECTION OF SENATORS AND REPRESENTATIVES.
Mr. Madison.—Mr. Chairman, the reason of the exception
was, that if congress could fix the place of choosing the
senators, it might compel the state legislatures to elect them
in a different place from that of their usual sessions, which
would produce some inconvenience, and was not necessary
for the object of regulating the elections. But it was necessary
to give the general government a control over the time
and manner of choosing the senators, to prevent its own dissolution.
With respect to the other point, it was thought that the
regulation of time, place, and manner, of electing the representatives,
should be uniform throughout the continent. Some
states might regulate the elections on the principles of equality,
and others might regulate them otherwise. This diversity
would be obviously unjust. Elections are regulated now
unequally in some states, particularly South Carolina, with
respect to Charleston, which is represented by thirty members.
Should the people of any state, by any means be deprived of
the right of suffrage, it was judged proper that it should be
remedied by the general government. It was found impossible
to fix the time, place, and manner, of the election of representatives
in the constitution. It was found necessary to
leave the regulation of these, in the first place, to the state
governments, as being best acquainted with the situation of
the people, subject to the control of the general government,
in order to enable it to produce uniformity, and prevent its
own dissolution. And considering the state governments and
general governments as distinct bodies, acting in different and
independent capacities for the people, it was thought the
particular regulations should be submitted to the former, and
the general regulations to the latter. Were they exclusively
under the control of the state governments, the general government
might easily be dissolved. But if they be regulated
properly by the state legislatures, the congressional control
will very probably never be exercised. The power appears to
the constitution.
[Mr. Monroe wished to hear an explanation of the clause
which prohibits either house, during the session of congress,
from adjourning for more than three days without the consent
of the other.]
Mr. Madison wondered that this clause should meet with a
shadow of objection. It was possible, he observed, that the
two branches might not agree concerning the time of adjournment,
and that this possibility suggested the power given the
president of adjourning both houses to such time as he should
think proper, in case of their disagreement. That it would be
very exceptionable to allow the senators, or even the representatives,
to adjourn without the consent of the other house,
at any season whatsoever, without any regard to the situation
of public exigencies. That it was possible, in the nature of
things, that some inconvenience might result from it; but
that it was as well secured as possible.
TO GEORGE WASHINGTON.
Dear Sir,—Your favor of [OMITTED] came to hand by the mail of
Wednesday. I did not write by several late returns for two reasons:
one the improbability of your having got back to Mount Vernon; the
other a bilious indisposition which confined me for several days. I
am again tolerably well recovered.
Appearances at present are less favorable than at the date of my
last. Our progress is slow and every advantage is taken of the delay,
to work on the local prejudices of particular sets of members. British
debts, the Indiana claim, and the Miss̃ippi are the principal topics
of private discussion & intrigue, as well as of public declamation.
The members who have served in Congress have been dragged
into communications on the first, which could not be justifiable
on any other occasion if on the present. There is reason to
believe that the event may depend on the Kentucky members; who
seem to lean more agst than in favor of the Constitution. The business
is in the most ticklish state that can be imagined. The majority will
certainly be very small on whatever side it may finally lie; and I dare
not encourage much expectation that it will be on the favorable side.
Oswald of Philada, has been here with letters for the anti federal
leaders from N. York and probably Philada. He staid a very short
time here during which he was occasionally closeted with H—y
M–s–n &c. I learn from N. York that the elections have proved
adverse to the Constitution.
Yours affecty.—Wash. MSS.
JUNE 14—COMPENSATION OF CONGRESS.
Mr. Madison.—Mr. Chairman, I most sincerely wish to give
a proper explanation on this subject, in such a manner as may
be to the satisfaction of every one. I shall suggest such considerations
as led the convention to approve of this clause.
With respect to the right of ascertaining their own pay, I will
acknowledge, that their compensations, if practicable, should
be fixed in the constitution itself, so as not to be dependent
on congress itself, or on the state legislatures. The various
vicissitudes, or rather the gradual diminution of the value of
all coins and circulating medium, is one reason against ascertaining
them immutably, as what may be now an adequate
compensation, might by the progressive reduction of the value
of our circulating medium, be extremely inadequate at a
period not far distant.
It was thought improper to leave it to the state legislatures,
because it is improper that one government should be dependent
on another: and the great inconveniences experienced
under the old confederation, show the states would be operated
upon by local considerations, as contradistinguished from general
and national interests.
Experience shows us that they have been governed by such
heretofore, and reason instructs us that they would be influenced
by them again. This theoretic inconvenience of
leaving to Congress the fixing their compensations is more
than counterbalanced by this in the Confederation—that
the state legislatures had a right to determine the pay of the
members of Congress, which enabled the states to destroy the
general government. There is no instance where this power
has been abused. In America, legislative bodies have reduced
their own wages lower, rather than augmented them.
This is a power which cannot be abused without rousing universal
attention and indignation. What would be the consequence
of the Virginia legislature raising their pay to four
or five pounds each per day? The universal indignation of
the people. Should the general Congress annex wages disproportionate
to their services, or repugnant to the sense of
the community, they would be universally execrated. The
certainty of incurring the general detestation of the people
will prevent abuse.
It was conceived that the great danger was in creating new
offices, which would increase the burdens of the people; and
not in a uniform admission of all meritorious characters to
serve their country in the old offices. There is no instance
of any state constitution which goes as far as this. It was
thought to be a mean between two extremes. It guards
against abuse by taking away the inducement to create new
offices, or increase the emolument of old offices; and it gives
them an opportunity of enjoying, in common with other citizens,
any of the existing offices which they may be capable
of executing; to have precluded them from this, would have
citizen is entitled, and to prevent those who had served their
country with the greatest fidelity and ability from being on
a par with their fellow-citizens. I think it as well guarded as
reason requires; more so than the constitution of any other
nation.
JUNE 14—COMPENSATION OF CONGRESS.
Mr Madison—Mr Chairman, let me ask those who oppose
this part of the system, whether any alteration would not
make it equally, or more liable to objections? Would it be
better to fix their compensations? Would not this produce
inconveniences? What authorises us to conclude, that the
value of coins will continue always the same? Would it be
prudent to make them dependent on the state governments
for their salaries—on those who watch them with jealous eyes,
and who consider them as encroaching, not on the people, but
on themselves? But the worthy member supposes, that
congress will fix their wages so low, that only the rich can fill
the offices of senators and representatives. Who are to appoint
them? The rich? No, sir, the people are to choose
them. If the members of the general government were to
reduce their compensations to a trifle, before the evil suggested
could happen, the people could elect other members
in their stead, who would alter that regulation. The people
do not choose them for their wealth. If the state legislatures
choose such men as senators, it does not influence the people
at large in their election of representatives.—They can choose
those who have the most merit and least wealth. If Congress
reduce their wages to a trifle, what shall prevent the states
from giving a man of merit, so much as will be an adequate
compensation? I think the evil very remote, and if it were
now to happen, the remedy is in our own hands, and may, by
ourselves, be applied.
Another gentleman seems to apprehend infinite mischief
to an office, although he ceases to be a member the
moment he accepts it. What will be the consequence of precluding
them from being so appointed? If you have in your
country, one man whom you could in time of danger trust
above all others, with an office of high importance, he cannot
undertake it till two years expire if he be a representative; or
till the six years elapse, if a senator. Suppose America was
engaged in war, and the man of the greatest military talents
and approved fidelity, was a member of either house—would
it be right that this man, who could lead us to conquer, and
who could save his country from destruction, could not be
made general till the term of his election expired? Before
that time, we might be conquered by our enemies. This will
apply to civil as well as military officers. It is impolitic to
exclude from the service of his country, in any office, the man
who may be most capable of discharging its duties, when they
are most wanting.
The honorable gentleman said, that those who go to Congress,
will look forward to offices as a compensation for their
services, rather than salaries. Does he recollect that they
shall not fill offices created by themselves? When they go to
congress, the old offices will be filled.—They cannot make
any probable calculation that the men in office will die, or
forfeit their offices As they cannot get any new offices, one
of those contingencies must happen, before they can get any
office at all. The chance of getting an office is, therefore, so
remote, and so very distant, that it cannot be considered as
a sufficient reason to operate on their minds, to deviate from
their duty.
Let any man calculate in his own mind, the improbability
of a member of the general government getting into an office,
when he cannot fill any office newly created, and when he finds
all the old offices filled at the time he enters into congress.
Let him view the danger and impolicy of precluding a member
of congress from holding existing offices, and the danger of
find that both clauses deserve applause.
The observations made by several honorable members, illustrate
my opinion, that it is impossible to devise any system
agreeable to all.—When objections so contradictory are
brought against it, how shall we decide? Some gentlemen
object to it, because they may make their wages too high—
others object to it, because they may make them too low. If
it is to be perpetually attacked by principles so repugnant,
we may cease to discuss. For what is the object of our discussion?
Truth, sir. To draw a true and just conclusion.
Can this be done without rational premises, and syllogistic
reasoning?
As to the British parliament, it is nearly as he says. But
how does it apply to this case? Suppose their compensations
had been appointed by the state governments, or fixed in the
constitution—would it be a safe government for the union,
if its members depended on receiving their salaries from other
political bodies at a distance, and fully competent to withhold
them? Its existence would, at best, be but precarious. If
they were fixed in the constitution, they might become extremely
inadequate, and produce the very evil which gentlemen
seem to fear.—For then a man of the highest merit could
not act unless he were wealthy. This is the most delicate
part in the organization of a republican government. It is the
most difficult to establish on unexceptionable grounds. It
appears to me most eligible as it is. The constitution has
taken a medium between the two extremes, and perhaps with
more wisdom than either the British or the state governments,
with respect to their eligibility to offices. They can fill no
new offices created by themselves, nor old ones of which they
increased the salaries. If they were excluded altogether, it
is possible that other disadvantages might accrue from it,
besides the impolicy and injustice of depriving them of a common
privilege. They will not relinquish their legislative, in
order to accept other offices. They will more probably confer
it is incident to all governments. After having
heard a variety of principles developed, I thought that on
which it is established the least exceptionable, and it appears
to me sufficiently well guarded.
JUNE 14—ORIGINATING OF MONEY BILLS.
Mr. Madison. Mr. Chairman, the criticism made by the
honorable member, is, that there is an ambiguity in the words,
and that it is not clearly ascertained where the origination of
money bills may take place. I suppose the first part of the
clause is sufficiently expressed to exclude all doubts. The
gentlemen who composed the convention divided in opinion,
concerning the utility of confining this to any particular
branch. Whatever it be in Great Britain, there is a sufficient
difference between us and them to render it inapplicable to
this country. It has always appeared to me, to be a matter
of no great consequence, whether the senate had a right of
originating, or proposing amendments to money bills or not.
To withhold it from them would create disagreeable disputes.
Some American constitutions make no difference. Virginia
and South Carolina, are, I think, the only states, where this
power is restrained. In Massachusetts, and other states, the
power of proposing amendments is vested, unquestionably,
in their senates. No inconvenience has resulted from it. On
the contrary, with respect to South Carolina, this clause is
continually a source of disputes. When a bill comes from
the other house, the senate entirely rejects it, and this causes
contentions. When you send a bill to the senate, without
the power of making any alteration, you force them to reject
the bill altogether, when it would be necessary and advantageous
that it should pass.
The power of proposing alterations, removes this inconvenience,
and does not appear to me at all objectionable. I
such bills. People would see what was done, and it would
add the intelligence of one house to that of the other. It
would be still in the power of the other house to obstruct any
injudicious measure proposed by them. There is no land
mark or constitutional provision in Great Britain, which prohibits
the house of lords from intermeddling with money bills;
but the house of commons have established this rule. Yet
the lords insist on their having a right to originate them, as
they possess great property, as well as the commons, and are
taxed like them. The house of commons object to their
claim, lest they should too lavishly make grants to the crown,
and increase the taxes. The honorable member says, that
there is no difference between the right of originating bills, and
proposing amendments. There is some difference, though
not considerable. If any grievances should happen in consequence
of unwise regulations in revenue matters, the odium
would be divided, which will now be thrown on the house of
representatives. But you may safely lodge this power of
amending with the senate. When a bill is sent with proposed
amendments to the house of representatives, if they find the
alterations defective, they are not conclusive. The house of
representatives are the judges of their propriety, and the
recommendation of the senate is nothing. The experience of
this state justifies this clause. The house of delegates has
employed weeks in forming a money bill; and because the
senate had no power of proposing amendments, the bill was
lost altogether; and a new bill obliged to be again introduced,
when the insertion of one line by the senate would have done.
Those gentlemen who oppose this clause will not object to it,
when they recollect that the senators are appointed by the
states, as the present members of congress are appointed. For,
as they will guard the political interests of the states in other
respects, they will attend to them very probably in their
amendments to money bills. I think this power, for these
considerations, is useful and necessary.
JUNE 14—POWER OVER THE MILITIA.
Mr Madison.—Mr Chairman, I most cordially agree with
the honorable member last up [Mason], that a standing army
is one of the greatest mischiefs that can possibly happen. It
is a great recommendation for this system, that it provides
against this evil more than any other system known to us,
and particularly more than the old system of confederation.
The most effectual way to guard against a standing army, is
to render it unnecessary. The most effectual way to render
it unnecessary, is to give the general government full power
to call forth the militia, and exert the whole natural strength
of the union when necessary. Thus you will furnish the people
with sure and certain protection, without recurring to this
evil; and the certainty of this protection from the whole, will
be a strong inducement to individual exertion. Does the
organization of the government warrant a belief, that this
power will be abused? Can we believe that a government of
a federal nature, consisting of many coequal sovereignties,
and particularly having one branch chosen from the people,
would drag the militia unnecessarily to an immense distance?
This, Sir, would be unworthy the most arbitrary despot.
They have no temptation whatever to abuse this power;
such abuse could only answer the purpose of exciting the
universal indignation of the people, and drawing on themselves
the general hatred and detestation of their country.
I cannot help thinking that the honorable gentleman has
not considered in all its consequences, the amendment he has
proposed. Would this be an equal protection, Sir? Or
would it not be a most partial provision? Some states have
three or four states in contact. Were this state invaded, as
it is bounded by several states, the militia of three or four
states would, by this proposition, be obliged to come to our
aid; and those from some of the states would come a far
greater distance than those of others. There are other states,
which if invaded, could be assisted by the militia of one state
only, there being several states which border but on one state.
those of the other states. Were we to adopt this amendment,
we should set up those states as butts for invasions, invite foreign
enemies to attack them, and expose them to peculiar
hardships and dangers. Were the militia confined to any
limited distance from their respective places of abode, it
would produce equal, nay, more, inconveniences. The principles
of equality, and reciprocal aid, would be destroyed in
either case.
I cannot conceive that this constitution, by giving the
general government the power of arming the militia, takes it
away from the state governments. The power is concurrent,
and not exclusive. Have we not found from experience, that
while the power of arming and governing of the militia has
been solely vested in the state legislatures, they were neglected
and rendered unfit for immediate service? Every state neglected
too much this most essential object. But the general
government can do it more effectually. Have we not also
found, that the militia of one state were almost always insufficient
to succour its harrassed neighbor? Did all the states
furnish their quotas of militia with sufficient promptitude?
The assistance of one state will be of little avail to repel invasion.
But the general head of the whole union can do it
with effect, if it be vested with power to use the aggregate
strength of the union. If the regulation of the militia were
to be committed to the executive authority alone, there might
be reason for providing restrictions. But, Sir, it is the legislative
authority that has this power. They must make a
law for the purpose.
The honorable member is under another mistake. He
wishes martial law to be exercised only in time of war, under
an idea that congress can establish it in time of peace. The
states are to have the authority of training the militia according
to the congressional discipline; and of governing them at
all times, when not in the service of the union.—Congress is to
govern such part of them as may be employed in the actual
to martial law. The gentlemen in opposition have drawn
a most tremendous picture of the constitution in this respect.
Without considering that the power was absolutely indispensible,
they have alarmed us with the possible abuse of it,
but have shewn no inducement or motive to tempt them to
such abuse. Would the legislature of the state drag the
militia of the eastern shore to the western frontiers, or those
of the western frontiers to the eastern shore, if the local militia
were sufficient to effect the intended purpose? There is something
so preposterous, and so full of mischief in the idea of
dragging the militia unnecessarily from one end of the continent
to the other, that I think there can be no ground of
apprehension. If you limit their power over the militia you
give them a pretext for substituting a standing army. If you
put it in the power of the state governments to refuse the
militia, by requiring their consent, you destroy the general
government, and sacrifice particular states. The same principles
and motives which produce disobedience to requisitions,
will produce refusal in this case.
The restrictions which the honorable gentleman mentioned
to be in the British constitution, are all provisions against the
power of the executive magistrate. But the house of commons
may, if they be so disposed, sacrifice the interest of their
constituents in all those cases. They may prolong the duration
of mutiny bills, and grant supplies to the king to carry
on an impolitic war. But they have no motives to do so.
For they have strong motives to do their duty. We have
more ample security than the people of Great Britain. The
powers of the government are more limited and guarded, and
our representatives are more responsible than the members of
the British house of commons.
JUNE 14—POWER OVER PURSE AND SWORD.
Mr MADISON—Mr Chairman, the honorable gentleman has
laid much stress on the maxim, that the purse and sword
out the impropriety of vesting this power in the general government.
But it is totally inapplicable to this question.
What is the meaning of this maxim? Does it mean that the
sword and purse ought not to be trusted in the hands of the
same government? This cannot be the meaning. For there
never was, and I can say there never will be an efficient government,
in which both are not vested. The only rational
meaning, is, that the sword and purse are not to be given to
the same member. Apply it to the British government,
which has been mentioned. The sword is in the hands of
the British king. The purse in the hands of the parliament.
It is so in America, as far as any analogy can exist. Would
the honorable member say, that the sword ought to be put in
the hands of the representatives of the people, or in other
hands independent of the government altogether? If he says
so, it will violate the meaning of that maxim. This would
be a novelty hitherto unprecedented. The purse is in the
hands of the representatives of the people. They have the
appropriation of all monies. They have the direction and
regulation of land and naval forces. They are to provide for
calling forth the militia—and the president is to have the
command; and, in conjunction with the senate, to appoint
the officers. The means ought to be commensurate to the
end. The end is general protection. This cannot be effected
without a general power to use the strength of the union.
We are told that both sides are distinguished by these great
traits, confidence and distrust. Perhaps there may be a less
or greater tincture of suspicion on one side, than the other.
But give me leave to say, that where power can be safely
lodged, if it be necessary, reason commands its cession. In
such case it is imprudent and unsafe to withhold it. It is universally
admitted that it must be lodged in some hands or
other. The question then is, in what part of the government
it ought to be placed; and not whether any other political
body independent of the government should have it or not.
government. If the honorable member, or any other person,
conceives that my attachment to this system arises from a
different source, he is greatly mistaken. From the first moment
that my mind was capable of contemplating political
subjects, I never, till this moment, ceased wishing success to
a well regulated republican government. The establishment
of such in America was my most ardent desire. I have considered
attentively (and my consideration has been aided by
experience) the tendency of a relaxation of laws, and a licentiousness
of manners.
If we review the history of all republics, we are justified by
the supposition, that if the bands of the government be relaxed,
confusion will ensue. Anarchy ever has, and I fear ever
will, produce despotism. What was the state of things that
preceded the wars and revolutions in Germany? Faction
and confusion. What produced the disorders and commotions
of Holland? The like causes. In this commonwealth,
and every state in the union, the relaxed operation of the government
has been sufficient to alarm the friends of their
country. The rapid increase of population in every state is
an additional reason to check dissipation and licentiousness.
Does it not strongly call for the friends of republican government
to endeavor to establish a republican organization? A
change is absolutely necessary. I can see no danger in submitting
to practice an experiment which seems to be founded
on the best theoretic principles.
But the honorable member tells us, there is not an equal
responsibility delineated on that paper, to that which is in
the English government. Calculations have been made here,
that when you strike off those entirely elected by the influence
of the crown, the other part does not bear a greater proportion
to the number of their people, than the number fixed in that
paper, bears to the number of inhabitants in the United
States. If it were otherwise, there is still more responsibility
in this government. Our representatives are chosen for two
citizen may be elected here. In Great Britain no one can be
elected to represent a county, without having an estate of the
value of £600, sterling a year, nor to represent a corporation
without an annual estate of £300. Yet we are told, there is
no sympathy or fellow-feeling between the people here, and
their representatives; but that in England they have both:—
A just comparison will show, that if confidence be due to the
government there, it is due ten fold here.
(Mr Madison made many other observations, but spoke so
very low that he could not be distinctly heard.)
JUNE 14—POWER OVER ELECTIONS.
Mr MADISON.—Mr Chairman, I cannot think that the explanation
of the gentleman last up, is founded in reason. It
does not say that the militia shall be called out in all cases,
but in certain cases. There are cases in which the execution
of the laws may require the operation of militia, which cannot
be said to be an invasion or insurrection. There may be a
resistance to the laws which cannot be termed an insurrection.
My honorable friend over the way has opened a new source
of argument. He has introduced the assertions of gentlemen
out of doors. If we thus depart from regularity, we will never
be able to come to a decision.
If there be any gentleman who is a friend to the government,
and says, that the elections may, or ought to be held in
one place, he is an enemy to it on that ground. With respect
to the time, place, and manner of elections, I cannot think,
notwithstanding the apprehensions of the honorable gentleman,
that there is any danger, or if abuse should take place,
that there is not sufficient security. If all the people, of the
United States should be directed to go to elect in one place,
the members of the government would be execrated for the
infamous regulation. Many would go to trample them under
foot for their conduct—and they would be succeeded by men
hatred and detestation of the people, and run the risk
of the certain dreadful consequences. We must keep within
the compass of human probability. If a possibility be the
cause of objection, we must object to every government in
America. But the honorable gentleman may say, that better
guards may be provided. Let us consider the objection.
The power of regulating the time, place, and manner of
elections, must be vested some where. It could not be fixed
in the constitution without involving great inconveniences.
They could then have no authority to adjust the regulation
to the changes of circumstances. The question then is,
whether it ought to be fixed unalterably in the state governments,
or subject to the control of the general government.
Is it not obvious, that the general government would be
destroyed without this control? It has already been demonstrated
that it will produce many conveniences. Have we
not sufficient security against abuse? Consider fully the
principles of the government. The sum of the powers given
up by the people of Virginia is divided into two classes: One
to the federal and the other to the state government. Each
is subdivided into three branches. These may be kept independent
of each other in the one as well as the other. In this
system they are as distinct as is consistent with good policy.
This, in my opinion, instead of diminishing, increases the
security of liberty more than any government that ever was.
For the powers of government which in every other country
are given to one body, are here given to two; and are favorable
to public liberty. With respect to secrecy, if every thing in
which it is necessary, could be enumerated, I would have no
objection to mention them. All the state legislatures can keep
secret what they think ought to be concealed. The British
house of commons can do it. They are in this respect under
much less restraint than congress. There never was any
legislative assembly without a discretionary power of concealing
important transactions, the publication of which might be
as long as the government is constructed on such principles.
He objects also to the clause respecting adjournment that
neither house shall, without the consent of the other, adjourn
for more than three days. It was before remarked, that if a
difference should take place between the houses about the
time of adjournment, the president could still determine it:
from which no danger could arise, as he is chosen in a secondary
degree by the people, and would consequently fix no time
which would be repugnant to the sense of the representatives
of the people. Another, and more satisfactory answer is this:
suppose the senate wished to chain down the house of representatives,
what is to hinder them from going home? How
bring them back again? It would be contrary to the spirit
of the constitution to impede the operations of the government,
perhaps at a critical period. I cannot conceive that
such difference will often happen. Were the senate to attempt
to prevent an adjournment, it would but serve to
irritate the representatives, without having the intended
effect, as the president could adjourn them. There will not
be occasion for the continual residence of the senators at the
seat of government. What business have they more than
the house of representatives? The appointment of officers
and treaties. With respect to the appointment of officers,
a law may be made to grant it to the President alone. It
must be supposed there will be but few and subordinate
officers to be appointed, as the principal offices will be filled.
It is observed that the President, when vacancies happen
during the recess of the senate, may fill them till it meets.
With respect to treaties, the occasions of forming them will
not be many, and will mean but a small proportion of the
time of session.
JUNE 16—POWER OVER THE MILITIA.
Mr Madison—Mr Chairman, I will endeavor to follow the
rule of the house; but must pay due attention to the observations
abstracted reasoning, that they were ill founded. I should
think, that if there were any object, which the general government
ought to command, it would be the direction of the
national forces. And as the force which lies in militia is most
safe, the direction of that part ought to be submitted to, in
order to render another force unnecessary. The power
objected to is necessary, because it is to be employed for
national purposes. It is necessary to be given to every government.
This is not opinion, but fact. The highest authority
may be given that the want of such authority in the
government, protracted the late war, and prolonged its
calamities.
He says, that one ground of complaint at the beginning of
the revolution, was, that a standing army was quartered upon
us. This was not the whole complaint. We complained because
it was done without the local authority of this country
—without the consent of the people of America. As to the
exclusion of standing armies in the bill of rights of the states,
we shall find that though in one or two of them, there is
something like a prohibition, yet in most of them it is only
provided, that no armies shall be kept without the legislative
authority; that is, without the consent of the community
itself. Where is the impropriety of saying that we shall have
an army, if necessary? Does not the notoriety of this constitute
security? If inimical nations were to fall upon us
when defenceless, what would be the consequence? Would
it be wise to say, that we should have no defence? Give me
leave to say that the only possible way to provide for standing
armies, is to make them unnecessary.
The way to do this, is to organize and discipline our militia,
so as to render them capable of defending the country against
external invasions, and internal insurrections. But it is urged
that abuses may happen. How is it possible to answer objections
against possibility of abuses? It must strike every
logical reasoner, that these cannot be entirely provided
was at an end. Was there ever a constitution, in which, if
authority was vested, it must not have been executed by
force, if resisted? Was it not in the contemplation of this
state, when contemptuous proceedings were expected, to recur
to something of this kind? How is it possible to have a more
proper resource than this? That the laws of every country
ought to be executed, cannot be denied. That force must be
used if necessary, cannot be denied. Can any government be
established, that will answer any purpose whatever, unless
force be provided for executing its laws? The constitution
does not say that a standing army shall be called out to
execute the laws. Is not this a more proper way? The
militia ought to be called forth to suppress smugglers. Will
this be denied? The case actually happened at Alexandria.
There were a number of smugglers, who were too formidable
for the civil power to overcome. The military quelled the
sailors, who, otherwise would have perpetrated their intentions.
Should a number of smugglers have a number of ships,
the militia ought to be called forth to quell them. We do not
know but what there may be combinations of smugglers in
Virginia hereafter. We all know the use made of the Isle of
Man. It was a general depository of contraband goods. The
parliament found the evil so great, as to render it necessary
to wrest it out of the hands of its possessor.
The honorable gentleman says that it is a government of
force. If he means military force, the clause under consideration
proves the contrary. There never was a government
without force. What is the meaning of government? An
institution to make people do their duty. A government
leaving it to a man to do his duty, or not as he pleases, would
be a new species of government, or rather no government at
all. The ingenuity of the gentleman is remarkable, in introducing
the riot act of Great Britain. That act has no connection,
or analogy, to any regulation of the militia; nor is
there any thing in the constitution to warrant the general
in Great Britain, that the militia could be called forth. If
riots should happen, the militia are proper to quell it, to
prevent a resort to another mode. As to the infliction of
ignominious punishments, we have no ground of alarm, if we
consider the circumstances of the people at large. There will
be no punishments so ignominious as have been inflicted
already. The militia law of every state to the north of Maryland,
is less rigorous than the particular law of this state. If
a change be necessary to be made by the general government,
it will be in our favor. I think that the people of those states
would not agree to be subjected to a more harsh punishment
than their own militia laws inflict. An observation fell from
a gentleman on the same side with myself, which deserves to
be attended to. If we be dissatisfied with the national government,
if we should choose to renounce it, this is an additional
safeguard to our defence. I conceive that we are peculiarly
interested in giving the general government as extensive means
as possible to protect us. If there be a particular discrimination
between places in America, the southern states are,
from their situation and circumstances, most interested in
giving the national government the power of protecting its
members.
(Here Mr Madison made some other observations; but spoke
so very low, that his meaning could not be comprehended.)
An act passed a few years ago in this state, to enable the
government to call forth the militia to enforce the laws when
a powerful combination should take place to oppose them.
This is the same power which the constitution is to have.
There is a great deal of difference between calling forth the
militia, when a combination is formed to prevent the execution
of the laws, and the sheriff or constable carrying with him
a body of militia to execute them in the first instance; which
is a construction not warranted by the clause. There is an
act also in this state, empowering the officers of the customs
to summon any persons to assist them when they meet with
of giving the government power to call forth the militia when
the laws are resisted. It is a power vested in every legislature
in the union, and which is necessary to every government.
He then moved, that the clerk should read those acts—which
were accordingly read.
JUNE l6—POWER OVER THE MILITIA.
Mr Madison.—Mr Chairman, let me ask this committee, and
the honorable member last up [Henry], what we are to understand
from this reasoning? The power must be vested in
congress, or in the state governments. Or there must be a
division or concurrence. He is against division—It is a
political monster. He will not give it to congress, for fear
of oppression. Is it to be vested in the state governments?
If so, where is the provision for general defence? If ever
America should be attacked, the states would fall successively.
It will prevent them from giving aid to their sister states.
For as each state will expect to be attacked, and wish to guard
against it, each will retain its own militia for its own defence.
Where is this power to be deposited then, unless in the general
government, if it be dangerous to the public safety to give
it exclusively to the states. If it must be divided, let him
shew a better manner of doing it than that which is in the
constitution. I cannot agree with the other honorable
gentleman, that there is no check. There is a powerful check
in that paper. The state governments are to govern the
militia, when not called forth for general national purposes;
and congress is to govern such part only as may be in the
actual service of the union. Nothing can be more certain and
positive than this. It expressly empowers congress to govern
them when in the service of the United States. It is then
clear, that the states govern them when they are not. With
respect to suppressing insurrections, I say that those clauses
which were mentioned by the honorable gentleman, are compatible
is to call them forth to suppress insurrections and repel
invasions of foreign powers. A concurrence in the former
case, is necessary, because a whole state may be in insurrection
against the union. What has passed, may perhaps justify
this apprehension. The safety of the union and particular
states, requires that the general government should have
power to repel foreign invasions. The fourth section of the
fourth article, is perfectly consistent with the exercise of the
power by the states. The words are, "The United States shall
guarantee to every state in this union, a republican form of
government, and shall protect each of them against invasion;
and on application of the legislature, or of the executive (when
the legislature cannot be convened), against domestic violence."
The word invasion here, after power had been given
in the former clause to repel invasions may be thought tautologous,
but it has a different meaning from the other. This
clause speaks of a particular state. It means that it shall be
protected from invasion by other states. A republican government
is to be guaranteed to each state, and they are to be
protected from invasion from other states, as well as from
foreign powers: And on application by the legislature or
executive as the case may be, the militia of the other states
are to be called to suppress domestic insurrections. Does this
bar the states from calling forth their own militia? No; but
it gives them a supplementary security to suppress insurrection
and domestic violence.
The other clause runs in these words, "No state shall, without
the consent of congress, lay any duty on tonnage, keep
troops or ships of war in time of peace, enter into any agreement
or compact with another state, or with a foreign power,
or engage in war, unless actually invaded, or in such imminent
danger as will not admit of delay." They are restrained
from making war, unless invaded, or in imminent
danger. When in such danger, they are not restrained. I
can perceive no competition in these clauses. They cannot be
object to the constitution in this manner, and consume our
time in verbal criticism, we shall never put an end to the
business.
JUNE 16—POWER OVER SEAT OF GOVERNMENT.
Mr Madison.—Mr Chairman, I did conceive, sir, that the
clause under consideration, was one of those parts which
would speak its own praise. It is hardly necessary to say any
thing concerning it. Strike it out of the system, and let me
ask, whether there would not be much larger scope for those
dangers? I cannot comprehend that the power of legislating
over a small district, which cannot exceed ten miles square,
and may not be more than one mile, will involve the dangers
which he apprehends. If there be any knowledge in my
mind, of the nature of man, I should think it would be the
last thing that would enter into the mind of any man, to grant
exclusive advantages in a very circumscribed district to the
prejudice of the community at large. We make suppositions,
and afterwards deduce conclusions from them, as if they were
established axioms. But after all, bring home this question
to ourselves. Is it probable that the members from Georgia,
New Hampshire, &c., will concur to sacrifice the privileges of
their friends? I believe, that whatever state may become the
seat of the general government, it will become the object of
jealousy, and of the envy of the other states. Let me remark,
if not already remarked, that there must be a cession by particular
states, of the district to congress, and that the states
may settle the terms of the cession. The states may make
what stipulation they please in it, and if they apprehend any
danger, they may refuse it altogether. How could the general
government be guarded from the undue influence of particular
states, or from insults, without such exclusive power? If it
were at the pleasure of a particular state to control the cession
and deliberations of congress, would they be secure from
depended for the freedom of deliberation, or the laws of any
state where it might be necessary to sit, would it not be liable
to attacks of that nature (and with more indignity) which have
been already offered to congress? With respect to the government
of Holland, I believe the states general have no jurisdiction
over the Hague. But I have heard that mentioned as a
circumstance which gave undue influence to Holland over the
rest. We must limit our apprehensions to certain degrees of
probability. The evils which they urge must result from this
clause, are extremely improbable: nay, almost impossible.
JUNE 16—POWER OVER SEAT OF GOVERNMENT.
Mr. Madison—Mr Chairman, I am astonished that the
honorable member should launch out into such strong descriptions
without any occasion. Was there ever a legislature
in existence that held their sessions at a place where they had
not jurisdiction? I do not mean such a legislature as they
have in Holland; for it deserves not the name.—Their powers
are such as congress have now; which we find not reducible to
practice. If you be satisfied with the shadow and form instead
of the substance, you will render them dependent on the
local authority. Suppose the legislature of this country
should sit in Richmond, while the exclusive jurisdiction of the
place was in some particular country, would this country
think it safe that the general good should be subject to the
paramount authority of a part of the community?
The honorable member asks, why ask for this power, and
if the subsequent clause be not fully competent for the same
purpose? If so what new terrors can arise from this particular
clause? It is only a superfluity. If that latitude of construction
which he contends for, were to take place with
respect to the sweeping clause, there would be room for those
horrors. But it gives no supplementary power: It only
of their powers be safe, no possible inconvenience can
arise from this clause. It is at most but explanatory. For
when any power is given, its delegation necessarily involves
authority to make laws to execute it. Were it possible to
delineate on paper, all those particular cases and circumstances
in which legislation by the general legislature would be necessary
and leave to the states all the other powers, I imagine
no gentleman would object to it. But this is not within the
limits of human capacity. The particular powers which are
found necessary to be given, are therefore delegated generally,
and particular and minute specification is left to the legislature.
(Here Mr Madison spoke of the distinction between regulation
of police and legislation; but so low he could not be heard.)
When the honorable member objects to giving the general
government jurisdiction over the place of their session, does
he mean that it should be under the control of any particular
state, that might at a critical moment seize it? I should have
thought that this clause would have met with the most cordial
approbation. As the consent of the state in which it may be,
must be obtained, and as it may stipulate the terms of the
grant, should they violate the particular stipulations, it would
be an usurpation: So that if the members of congress were
to be guided by the laws of their country, none of those
dangers could arise.
(Mr Madison made several other remarks, which could not
be heard.)
JUNE 17—IMPORTATION OF SLAVES.
Mr Madison—Mr Chairman, I should conceive this clause
[permitting importation of slaves] to be impolitic, if it were
one of those things which could be excluded without encountering
greater evils. The southern states would not have
entered into the union of America, without the temporary
permission of that trade. And if they were excluded from
us. We are not in a worse situation than before. That
traffic is prohibited by our laws, and we may continue the
prohibition. The union in general is not in a worse situation.
Under the articles of confederation, it might be continued
forever: but by this clause an end may be put to it after
twenty years. There is, therefore, an amelioration of our circumstances.
A tax may be laid in the meantime, but it is
limited, otherwise congress might lay such a tax as would
amount to a prohibition. From the mode of representation
and taxation, congress cannot lay such a tax on slaves as will
amount to manumission. Another clause secures us that
property which we now possess. At present, if any slave
elopes to any of those states where slaves are free, he becomes
emancipated by their laws. For the laws of the states are
uncharitable to one another in this respect. But in this constitution,
"no person held to service, or labor, in one state,
under the laws thereof, escaping into another, shall in consequence
of any law or regulation therein, be discharged from
such service or labor; but shall be delivered up on claim of
the party to whom such service or labor may be due." This
clause was expressly inserted to enable owners of slaves to
reclaim them.
This is a better security than any that now exists. No
power is given to the general government to interpose with
respect to the property in slaves now held by the states. The
taxation of this state being equal only to its representation,
such a tax cannot be laid as he supposes. They cannot prevent
the importation of slaves for twenty years; but after that
period they can. The gentlemen from South Carolina and
Georgia argued in this manner: "We have now liberty to
import this species of property, and much of the property now
possessed, had been purchased, or otherwise acquired, in contemplation
of improving it by the assistance of imported slaves.
What would be the consequence of hindering us from it? The
slaves of Virginia would rise in value, and we would be
subject. Great as the evil is, a dismemberment of the union,
would be worse. If those states should disunite from the
other states, for not indulging them in the temporary continuance
of this traffic, they might solicit and obtain aid from
foreign powers.
JUNE 17—IMPORTATION OF SLAVES.
Mr. Madison replied, that even the southern states, who
were most affected, were perfectly satisfied with this provision,
and dreaded no danger to the property they now hold.
It appeared to him, that the general government would not
intermeddle with that property for twenty years, but to lay
a tax on every slave imported, not exceeding ten dollars; and
that after the expiration of that period, they might prohibit
the traffic altogether. The census in the constitution was
intended to introduce equality in the burdens to be laid on
the community. No gentleman objected to laying duties,
imposts, and excises, uniformly. But uniformity of taxes
would be subversive to the principles of equality: for that it
was not possible to select any article which would be easy
for one state, but what would be heavy for another. That
the proportion of each state being ascertained, it would be
raised by the general government in the most convenient
manner for the people, and not by the selection of any one
particular object. That there must be some degree of confidence
put in agents, or else we must reject a state of civil
society altogether. Another great security to this property,
which he mentioned, was, that five states were greatly interested
in that species of property; and there were other
states which had some slaves, and had made no attempt, or
taken any step to take them from the people. There were a
few slaves in New York, New Jersey, and Connecticut: these
states would, probably, oppose any attempts to annihilate this
species of property. He concluded, by observing, that he
would be glad to leave the decision of this to the committee.
JUNE 17—THE VICE PRESIDENCY.
Mr Madison.—Mr Chairman, I think there are some peculiar
advantages incident to this office [the Vice Presidency], which
recommend it to us. There is in the first place a great
probability this officer will be taken from one of the largest
states, and if so, the circumstance of his having an eventual
vote will be so far favorable. The consideration which recommends
it to me, is, that he will be the choice of the people at
large.—There are to be ninety-one electors, each of whom has
two votes: if he have one fourth of the whole number of votes,
he is elected vice-president. There is much more propriety in
giving this office to a person chosen by the people at large,
than to one of the senate who is only the choice of the legislature
of one state.—His eventual vote is an advantage too
obvious to comment upon. I differ from the honorable member
in the case which enables congress to make a temporary
appointment. When the president and vice-president die,
the election of another president will immediately take place,
and suppose it would not, all that congress could do, would be
to make an appointment, between the expiration of the four
years and the last election, and to continue only to such
expiration. This can rarely happen. This power continues
the government in motion, and is well guarded.
JUNE 18—ELECTION OF PRESIDENT.[66]
Mr Madison—Mr Chairman, I will take the liberty of making
a few observations, which may place this in such a light as
honorable members objecting to this, have pointed out the
right mode of election. It was found difficult in the convention,
and will be found so by any gentleman who will take the
liberty of delineating a mode of electing the president, that
would exclude those inconveniences which they apprehend.
I would not contend against some of the principles laid down
by some gentlemen if the interests of some states only were to
be consulted. But there is a great diversity of interests.
The choice of the people ought to be attended to. I have
found no better way of selecting the man in whom they
place the highest confidence, than that delineated in the plan
of the convention—nor has the gentleman told us. Perhaps
it will be found impracticable to elect him by the immediate
suffrages of the people. Difficulties would arise from the
extent and population of the states. Instead of this, the
people chose the electors.
This can be done with ease and convenience, and will
render the choice more judicious. As to the eventual voting
by states, it has my approbation. The lesser states, and some
large states, will be generally pleased by that mode. The
deputies from the small states argued, (and there is some force
in their reasoning) that when the people voted, the large states
evidently had the advantage over the rest, and without varying
the mode, the interest of the little states might be neglected
or sacrificed. Here is a compromise.—For in the
eventual election, the small states will have the advantage.
In so extensive a country, it is probable that many persons
will be voted for, and the lowest of the five highest on the list
to the possibility, that a small number of votes may decide
his election, I do not know how, nor do I think that a bare
calculation of possibility ought to govern us.—One honorable
gentleman has said, that the eastern states may, in the
eventual election, choose him. But in the extravagant calculation
he has made, he has been obliged to associate North
Carolina and Georgia, with the five smallest northern States.
There can be no union of interest or sentiments between states
so differently situated.
The honorable member last up has committed a mistake in
saying there must be a majority of the whole number of electors
appointed. A majority of votes, equal to a majority of
the electors appointed, will be sufficient. Forty-six is a
majority of ninety one, and will suffice to elect the president.
TO GEORGE WASHINGTON.
No question direct or indirect has yet been taken by which the state
of parties could be determined, of course each is left to enjoy the
hopes resulting from its own partial calculations. It is probable the
majority on either side will not exceed 3, 4, 5, or 6. I indulge a belief
that at this time the friends of the Constitution have the advantage
in point of number. Great moderation as yet marks our proceedings.
Whether it be the effect of temper, or of the equality of forces and the
uncertainty of victory, will be seen by the event. We are at present
on the Executive Department. Mr. H—y has not made any opposition
to it, though it was looked for. He may however still mean to
make one; or he may lay by for an exertion against the Judiciary. I
find myself not yet restored and extremely feeble.
With my affecte regards I remain, Yrs.—Mad. MSS.
JUNE 18—TREATY-MAKING POWER.
Mr. Madison.—Mr. Chairman, I am persuaded that when
this power comes to be thoroughly and candidly viewed, it will
be found right and proper. As to its extent, perhaps it will
be satisfactory to the committee, that the power is precisely in
the new constitution, as it is in the confederation. In the
existing confederacy, congress are authorized indefinitely to
make treaties. Many of the states have recognised the
treaties of congress to be the supreme law of the land. Acts
have passed within a year, declaring this to be the case. I
have seen many of them. Does it follow, because this power
is given to congress, that it is absolute and unlimited? I do
not conceive that power is given to the president and senate
to dismember the empire, or to alienate any great essential
right. I do not think the whole legislative authority have
this power. The exercise of the power must be consistent
with the object of the delegation.
One objection against the amendment proposed, is this;
authority to dismember the empire—a power that ought not
to be given, but by the necessity that would force assent from
every man. I think it rests on the safest foundation as it is.
The object of treaties is the regulation of intercourse with
foreign nations, and is external. I do not think it possible to
enumerate all the cases in which such external regulations
would be necessary. Would it be right to define all the cases
in which congress could exercise this authority? The definition
might, and probably would be defective. They might
be restrained by such a definition, from exercising the authority
where it would be essential to the interest and safety
of the community. It is most safe, therefore, to leave it to
be exercised as contingencies may arise.
It is to be presumed, that in transactions with foreign
countries, those who regulate them, will feel the whole force of
national attachment to their country. The contrast being
between their own nation and a foreign nation, is it not presumable
they will, as far as possible, advance the interest of
their own country? Would it not be considered as a dangerous
principle in the British government, were the king to have
the same power in internal regulations, as he has in the
external business of treaties? Yet, as among other reasons,
it is natural to suppose he will prefer the interest of his own,
to that of another country, it is thought proper to give him
this external power of making treaties. This distinction is
well worthy the consideration of gentlemen. I think the
argument of the gentleman who restrained the supremacy of
these to the laws of particular states, and not to congress, is
rational. Here the supremacy of a treaty is contrasted with
the supremacy of the laws of the states. It cannot be otherwise
supreme. If it does not supersede their existing laws, as
far as they contravene its operation, it cannot be of any effect.
To counteract it by the supremacy of the state laws would
bring on the union the just charge of national perfidy, and
involve us in war.
Suppose the king of Great Britain should make a treaty
with France, where he had a constitutional right; if the
treaty should require an internal regulation, and the parliament
should make a law to that effect, that law would be
binding on the one, though not on the other nation. Suppose
there should be a violation of right by the exercise of this
power by the president and senate; if there was apparent
merit in it, it would be binding on the people: for where there
is a power for any particular purpose, it must supersede what
may oppose it, or else it can be no power. For instance,
where there is a power of declaring war, that power as to
declaring war supersedes every thing. This would be an unfortunate
case, should it happen; but should it happen, there
is a remedy; and there being a remedy, they will be restrained
against abuses.
But let us compare the responsibility in this government to
that of the British government. If there be an abuse of this
royal prerogative, the minister who advises him, is liable to
impeachment. This is the only restraint on the sovereign.
Now, Sir, is not the minister of the United States under restraint?
Who is the minister?—The president himself, who
is liable to impeachment. He is responsible in person. But
for the abuse of the power of the king, the responsibility is in
his advisers. Suppose the constitution had said, that this
minister alone could make treaties, and when he violated the
interest of the nation, he would be impeached by the senate;
then the comparison would hold good between the two governments.
But is there not an additional security by adding to
him the representatives and guardians of the political interest
of the states? If he should seduce a part of the senate to a
participation in his crimes, those who were not seduced would
pronounce sentence against him; and there is this supplementary
security, that he may be convicted and punished
afterwards, when other members come in the senate, one-third
being excluded every second year. So that there is a two-fold
security. The security of impeachment and conviction by
than one-third be engaged with the president in the plot; and
should there be more of them engaged in it, he may be tried
and convicted by the succeeding senators, and the upright
senators who were in the senate before.
As to the case of the Russian ambassador, I shall say nothing.
It is as inapplicable as many other quotations made by
the gentleman. I conceive that as far as the bills of rights
in the states, do not express any thing foreign to the nature
of such things, and express fundamental principles essential
to liberty, and those privileges which are declared necessary
to all free people, these rights are not encroached on by this
government.
(Mr. Madison added other remarks which could not be
heard.)
JUNE 20—POWER OF JUDICIARY.[67]
Mr Madison—Mr Chairman, permit me to make a few observations
which may place this part in a more favorable light
than the gentleman placed it in yesterday. It may be proper
to remark, that the organization of the general government
was a peculiar difficulty in that of the Executive. Every thing
incident to it must have participated of that difficulty. That
mode which was judged most expedient was adopted, till
experience should point out one more eligible. This part
was also attended with difficulties. It claims the indulgence
of a fair and liberal interpretation. I will not deny that according
to my view of the subject, a more accurate attention
might place it in terms which would exclude some of the
objections now made to it. But if we take liberal construction,
I think we shall find nothing dangerous or inadmissible in
it. In compositions of this kind, it is difficult to avoid technical
terms which have the same meaning. An intention to this
may satisfy gentlemen, that precision was not so easily obtained
as may be imagined. I will illustrate this by one thing
in the constitution. There is a general power to provide
courts to try felonies and piracies committed on the high seas.
Piracy is a word which may be considered as a term of the
law of nations. Felony is a word unknown to the law of
nations, and is to be found in the British laws, and from thence
adopted in the law of these states. It was thought dishonorable
to have recourse to that standard. A technical
term of the law of nations is therefore used that we should
find ourselves authorised to introduce it into the laws of the
United States. The first question which I shall consider, is
whether the subjects of its cognizance be proper subjects of a
federal jurisdiction. The second will be, whether the provisions
respecting it be consistent with safety and impropriety,
will answer the purposes intended, and suit local circumstances.
The first class of cases to which its jurisdiction extends, are
those which may arise under the constitution; and this is to
extend to equity as well as law. It may be a misfortune, that
in organizing any government, the explication of its authority
should be left to any of its co-ordinate branches. There is
no example in any country where it is otherwise. There is a
States. That causes of a federal nature will arise, will be
obvious to every gentleman, who will recollect that the states
are laid under restrictions; and that the rights of the union
are secured by these restrictions. They may involve equitable
as well as legal controversies. With respect to the laws of
the union, it is so necessary and expedient that the judicial
power should correspond with the legislative, that it has not
been objected to. With respect to treaties, there is a peculiar
propriety in the judiciary expounding them.
These may involve us in controversies with foreign nations.
It is necessary therefore, that they should be determined in the
courts of the general government. There are strong reasons
why there should be a supreme court to decide such disputes.
If in any case uniformity be necessary, it must be in the exposition
of treaties. The establishment of one revisionary
superintending power, can alone secure such uniformity.
The same principles hold with respect to cases affecting ambassadors,
and foreign ministers. To the same principles may
also be referred their cognizance in admiralty and maritime
cases. As our intercourse with foreign nations will be affected
by decisions of this kind, they ought to be uniform. This
can only be done by giving the federal judiciary exclusive
jurisdiction. Controversies affecting the interest of the
United States ought to be determined by their own judiciary,
and not be left to partial local tribunals.
The next case, where two or more states are the parties, is
not objected to. Provision is made for this by the existing
articles of confederation, and there can be no impropriety in
referring such disputes to this tribunal.
Its jurisdiction in controversies between a state and citizens
of another state, is much objected to, and perhaps without
reason. It is not in the power of individuals to call any state
into court. The only operation it can have, is that if a state
should wish to bring suit against a citizen, it must be brought
before the federal court. This will give satisfaction to individuals,
a claim, being dissatisfied with the state courts. It is a case
which cannot often happen, and if it should be found improper,
it will be altered. But it may be attended with good effects.
This may be illustrated by other cases. It is provided, that
cases of citizens of different states may be carried to the federal
courts.
But this will not go beyond the cases where they may be
parties. A femme covert may be a citizen of another state, but
cannot be a party in this court. A subject of a foreign power
having a dispute with a citizen of this state, may carry it to
the federal court; but an alien enemy cannot bring suit at all.
It appears to me, that this can have no operation but this—
to give a citizen a right to be heard in the federal courts; and
if a state should condescend to be a party, this court may take
cognizance of it.
As to its cognizance of disputes between citizens of different
states, I will not say it is a matter of such importance. Perhaps
it might be left to the state courts. But I sincerely
believe this provision will be rather salutary, than otherwise.
It may happen that a strong prejudice may arise in some
states, against the citizens of others, who may have claims
against them. We know what tardy, and even defective
administration of justice, has happened in some states. A
citizen of another state might not chance to get justice in a
state court, and at all events he might think himself injured.
To the next clause there is no objection.
The next case provides for disputes between a foreign state,
and one of our states, should such a case ever arise; and
between a citizen and a foreign citizen or subject. I do not
conceive that any controversy can ever be decided in these
courts, between an American state and a foreign state, without
the consent of the parties. If they consent, provision is here
made. The disputes ought to be tried by the national tribunal.
This is consonant to the law of nations. Could there
be a more favorable or eligible provision to avoid controversies
a member of the union to drag the whole community into
war? As the national tribunal is to decide, justice will be
done. It appears to me from this review, that, though on
some of the subjects of this jurisdiction, it may seldom or
never operate, and though others be of inferior consideration,
yet they are mostly of great importance, and indispensably
necessary.
The second question which I proposed to consider, was,
whether such organization be made as would be safe and convenient
for the states and the people at large. Let us suppose
that the subjects of its jurisdiction had only been enumerated,
and power given to the general legislature to establish such
courts as might be judged necessary and expedient, do not
think that in that case any rational objection could be made
to it, any more than would be made to a general power of
legislation in certain enumerated cases. If that would be
safe, this appears to me better and more restrictive, so far
as it may be abused by extension of power. The most
material part is the discrimination of superior and inferior
jurisdiction, and the arrangement of its powers; as, where it
shall have original, and where appellate cognizance. Where
it speaks of appellate jurisdiction, it expressly provides, that
such regulations will be made as will accommodate every
citizen; so far as practicable in any government. The principal
criticism which has been made, was against the appellate
cognizance, as well of fact as law. I am happy that the
honorable member who presides, and who is familiarly
acquainted with the subject, does not think it involves any
thing unnecessarily dangerous. I think that the distinction
of fact as well as law, may be satisfied by the discrimination
of the civil and common law. But if gentlemen should contend,
that appeals, as to fact, can be extended to jury cases,
I contend, that by the word regulations, it is in the power
of congress to prevent it, or prescribe such a mode as will
secure the privilege of jury trial. They may make a regulation
the fact, or send it to an inferior contiguous court, to be tried;
or otherwise preserve that ancient and important trial.
Let me observe, that so far as the judicial power may extend
to controversies between citizens of different states, and so far
as it gives them power to correct by another trial, a verdict
obtained by local prejudices, it is favorable to those states
who carry on commerce. There are a number of commercial
states, who carry on trade, for other states.—Should the
states in debt to them make unjust regulations, the justice
that would be obtained by the creditors, might be merely
imaginary and nominal. It might be either entirely denied,
or partially granted. This is no imaginary evil. Before the
war, New York was to a great amount a creditor of Connecticut:
while it depended on the laws and regulations of
Connecticut, she might withhold payment. If I be not misinformed,
there were reasons to complain. These illiberal regulations
and causes of complaint, obstruct commerce. So far
as this power may be exercised, Virginia will be benefitted by
it. It appears to me from the most correct view, that by the
word regulations, authority is given them to provide against
the inconveniences, and so far as it is exceptionable, they can
remedy it. This they will do if they be worthy of the trust
we put in them. I think them worthy of that confidence
which that paper puts in them. Were I to select a power
which might be given with confidence, it would be judicial
power. This power cannot be abused, without raising the
indignation of all the people of the states. I cannot conceive
that they would encounter this odium. Leaving behind them
their character and friends, and carrying with them local prejudices,
I cannot think they would run such a risk. That men
should be brought from all parts of the union to the seat of
government, on trivial occasions, cannot reasonably be supposed.
It is a species of possibility; but there is every degree
of probability against it. I would as soon believe, that by
virtue of the power of collecting taxes or customs, they would
his own hands to the federal treasurer, as I would believe this.
If they would not do the one, they would not the other.
I am of opinion, and my reasoning and conclusions are drawn
from facts, that as far as the power of congress can extend, the
judicial power will be accommodated to every part of America.
Under this conviction, I conclude, that the legislation, instead
of making the supreme federal court absolutely stationary, will
fix it in different parts of the continent, to render it more convenient.
I think this idea perfectly warrantable. There is
an example, within our knowledge which illustrates it. By
the confederation, congress have an exclusive right of establishing
rules for deciding in all cases, what captures should
be legal, and establishing courts for determining such cases
finally. A court was established for that purpose, which was
at first stationary.—Experience, and the desire of accommodating
the decision of this court to the convenience of the citizens
of the different parts of America, had this effect—it soon became
a regulation, that this court should be held in different
parts of America, and was held accordingly. If such a regulation
was made, when only the interest of the small number
of people who are concerned with captures was affected, will
not the public convenience be consulted, when that of a very
considerable proportion of the people of America will be concerned?
It will be also in the power of congress to vest this
power in the state courts, both inferior and superior. This
they will do, when they find the tribunals of the states
established on a good footing.
Another example will illustrate this subject further. By
the confederation, congress are authorized to establish courts
for trying piracies and felonies committed on the high seas.
Did they multiply courts unnecessarily in this case? No, sir,
they invested the admiralty courts of each state with this
jurisdiction. Now, sir, if there will be as much sympathy between
congress and the people, as now, we may fairly conclude,
that the federal cognizance will be vested in the local tribunals.
legislature will do every mischief they possibly can, and
that they will omit to do every thing good which they are
authorized to do. If this were a reasonable supposition, their
objections would be good. I consider it reasonable to conclude,
that they will as readily do their duty, as deviate from it:
nor do I go on the grounds mentioned by gentlemen on the
other side—that we are to place unlimited confidence in them,
and expect nothing but the most exalted integrity and
sublime virtue. But I go on this great republican principle,
that the people will have virtue and intelligence to select men
of virtue and wisdom. Is there no virtue among us? If there
be not, we are in a wretched situation. No theoretical checks
—no form of government can render us secure. To suppose
that any form of government will secure liberty or happiness
without any virtue in the people, is a chimerical idea. If there
be sufficient virtue and intelligence in the community, it will be
exercised in the selection of these men. So that we do not
depend on their virtue, or put confidence in our rulers, but in
the people who are to choose them.
Having taken this general view on the subject, I will now
advert to what has fallen from the honorable gentleman who
presides. His criticism is, that the judiciary has not been
guarded from an increase of the salary of the judges. I wished
myself, to insert a restraint on the augmentation, as well as
diminution, of their compensation: and supported it in the
convention. But I was overruled. I must state the reasons
which were urged. They had great weight. The business
must increase. If there was no power to increase their pay, according
to the increase of business, during the life of the
judges, it might happen that there would be such an accumulation
of business as would reduce the pay to a most trivial
consideration. This reason does not hold as to the president,
for in the short period which he presides, this cannot happen.
His salary ought not, therefore, to be increased. It was
objected yesterday, that there was no provision for a jury
would not have been opposed. It might so happen, that a
trial would be impracticable in the country. Suppose a rebellion
in a whole district, would it not be impossible to get a
jury? The trial by jury is held as sacred in England as in
America.—There are deviations of it in England; yet greater
deviations have happened here since we established our independence,
than have taken place there for a long time, though
it be left to the legislative discretion. It is a misfortune in
any case that this trial should be departed from, yet in some
cases it is necessary. It must be, therefore, left to the discretion
of the legislature to modify it according to circumstances.
This is a complete and satisfactory answer.
It was objected, that this jurisdiction would extend to all
cases, and annihilate the state courts. At this moment of
time it might happen, that there are many disputes between
citizens of different states. But in the ordinary state of
things, I believe that any gentlemen will think that the far
greater number of causes—ninety-nine out of an hundred,
will remain with the state judiciaries. All controversies
directly between citizen and citizen, will still remain with the
local courts. The number of cases within the jurisdiction of
these courts are very small when compared to those in which
the local tribunals will have cognizance. No accurate calculation
can be made but I think that any gentleman who will
contemplate the subject at all, must be struck with this truth.
[Here Mr Madison spoke too low to be understood.)
As to vexatious appeals, they can be remedied by congress.
It would seldom happen that mere wantonness would produce
such an appeal, or induce a man to sue unjustly. If the
courts were on a good footing in the states, what can induce
them to take so much trouble? I have frequently, in the
discussion of this subject, been struck with one remark. It
has been urged, that this would be oppressive to those who
by imprudence, or otherwise are under the denomination of
debtors. I know not how this can be conceived. I will
effect of establishing universal justice, and accelerating it
throughout America, it will be one of the most fortunate circumstances
that could happen for those men. With respect
to that class of citizens, compassion is their due. To those,
however, who are involved in such incumbrances, relief cannot
be granted. Industry and economy are the only resources.—
It is vain to wait for money, or temporise. The great desiderata
are public and private confidence. No country in
the world can do without them. Let the influx of money be
ever so great, if there be no confidence, property will sink in
value, and there will be no inducements or emulation to industry.
The circulation of confidence is better than the
circulation of money. Compare the situations of nations in
Europe, where the justice is administered with celerity, to that
of those where it is refused, or administered tardily. Confidence
produces the best effects in the former. The establishment
of confidence will raise the value of property, and relieve
those who are so unhappy as to be involved in debts. If this
be maturely considered, I think it will be found that as far
as it will establish uniformity of justice, it will be of real
advantage to such persons. I will not enter into those considerations
which the honorable gentleman added. I hope
some other gentleman will undertake to answer.
TO JAMES MADISON.
No question has yet been taken by which the strength of parties can
be determined. The calculations on different sides do not accord;
each making them under the bias of their particular wishes. I think
however the friends of the Constitution are most confident of superiority,
and am inclined myself to think they have at this time the advantage
of 3 or 4 or possibly more in point of number. The final question
will probably decide the contest in a few days more. We are now on
the Judiciary Department, against which the last efforts of the adversaries
seem to be made. How far they will be able to make an
impression, I cannot say. It is not probable that many proselytes
will be made on either side. As this will be handed to you at Court
you can make its contents known to Majr Moore and other friends to
whom I have not time separately to write. With my regards to my
mother & the family I remain yr affec. Son.—Mad. MSS.
JUNE 24—NECESSITY FOR RATIFICATION.[68]
Mr Madison.—Mr Chairman, nothing has excited more
admiration in the world, than the manner in which free governments
have been established in America. For it was the
revolution, that free inhabitants have been seen deliberating
on a form of government, and selecting such of their citizens
as possessed their confidence, to determine upon, and give
effect to it. But why has this excited so much wonder and
applause? Because it is of so much magnitude, and because
it is liable to be frustrated by so many accidents. If it has
excited so much wonder, that the United States have in the
middle of war and confusion, formed free systems of government,
how much more astonishment and admiration will be
excited, should they be able, peaceably, freely and satisfactorily,
to establish one general government, when there is
such a diversity of opinions, and interests, when not cemented
or stimulated by any common danger? How vast must be
the difficulty of concentrating in one government, the interests,
and conciliating the opinions of so many different heterogeneous
bodies?
How have the confederacies of ancient and modern times
been formed? As far as ancient history describes the former
to us, they were brought about by the wisdom of some eminent
sage. How was the imperfect union of the Swiss Cantons
formed? By danger. How was the confederacy of the
United Netherlands formed? By the same. They are surrounded
by dangers. By these and one influential character,
they were stimulated to unite. How was the Germanic system
formed? By danger in some degree, but principally by
the overruling influence of individuals.
When we consider this government, we ought to make great
allowances. We must calculate the impossibility that every
state should be gratified in its wishes, and much less that
every individual should receive this gratification. It has
that it has effects. But they do not think that it contains
any real danger. They conceive that they will in all probability
be removed, when experience will shew it to be necessary.
I beg that gentlemen in deliberating on this subject, would
consider the alternative. Either nine states shall have ratified
it or they will not. If nine states will adopt it, can it be
reasonably presumed or required, that nine states having
freely and fully considered the subject, and come to an
affirmative decision, will, upon the demand of a single state,
agree that they acted wrong, and could not see its defect—
tread back the steps which they have taken and come forward
and reduce it to uncertainty, whether a general system shall
be adopted or not? Virginia has always heretofore spoken
the language of respect to the other states, and she has always
been attended to. Will it be that language, to call on a great
majority of the states to acknowledge that they have done
wrong? Is it the language of confidence to say, that we do
not believe that amendments for the preservation of the
common liberty and general interests of the state, will be
consented to by them? This is neither the language of confidence
nor respect. Virginia when she speaks respectfully,
will be as much attended to, as she has hitherto been when
speaking this language.
It is a most awful thing that depends on our decision—no
less than whether the thirteen states shall unite freely,
peaceably, and unanimously, for security of their common
happiness and liberty, or whether every thing is to be put
in confusion and disorder. Are we to embark in this dangerous
enterprise, uniting various opinions to contrary interests,
with the vain hope of coming to an amicable concurrence?
It is worthy of our consideration, that those who prepared
the paper on the table, found difficulties not to be described,
in its formation—mutual deference and concession were absolutely
necessary. Had they been inflexibly tenacious of
their individual opinions they would never have concurred.
was formed, or particular proposition made, and men's minds
were calm and dispassionate. Yet under these circumstances,
it was difficult, extremely difficult, to agree to any general
system.
Suppose eight states only should ratify, and Virginia should
propose certain alterations, as the previous condition of her
accession. If they should be disposed to accede to her proposition,
which is the most favorable conclusion, the difficulty
attending it will be immense. Every state, which has decided
it, must take up the subject again. They must not
only have the mortification of acknowledging that they had
done wrong, but the difficulty of having a reconsideration of
it among the people, and appointing new conventions to
deliberate upon it. They must attend to all the amendments,
which may be dictated by as great a diversity of political
opinions, as there are local attachments. When brought together
in one assembly, they must go through, and accede to
every one of the amendments. The gentlemen who, within
this house, have thought proper to propose previous amendments,
have brought no less than forty amendments—a bill
of rights which contains twenty amendments, and twenty
other alterations, some of which are improper and inadmissible.
Will not every state think herself equally entitled
to propose as many amendments? And suppose them, to be
contradictory, I leave it to this convention, whether it be
probable that they can agree, or agree to any thing, but the
plan on the table; or whether greater difficulties will not be
encountered, than were experienced in the progress of the
formation of the constitution.
I have said that there was a great contrariety of opinions
among the gentlemen in the opposition. It has been heard
in every stage of their opposition. I can see from their
amendments, that very great sacrifices have been made by
some of them. Some gentlemen think that it contains too
much state influence: others, that it is a complete consolidation,
that the equality in the senate, is not a defect; others, that it
is the bane of all good governments. I might, if there were
time, show a variety of other cases, where their opinions are
contradictory. If there be this contrariety of opinions in this
house, what contrariety may not be expected, when we take
into view, thirteen conventions equally or more numerous?
Besides, it is notorious from the debates which have been
published, that there is no sort of uniformity in the grounds
of the opposition.
The state of New York has been adduced. Many in that
state are opposed to it from local views. The two who opposed
it in the general convention from that state, are in the
state convention. Every step of this system was opposed by
those two gentlemen. They were unwilling to part with the
old confederation. Can it be presumed then, sir, that gentlemen
in this state, who admit the necessity of changing, should
ever be able to unite in sentiments with those who are totally
averse to any change.
I have revolved this question in my mind, with as much
serious attention, and called to my aid as much information
as I could, yet I can see no reason for the apprehensions
of gentlemen, but I think that if Virginia will agree to
ratify this system, I shall look upon it as one of the most
fortunate events that ever happened for human nature. I
cannot, therefore, without the most excruciating apprehensions,
see a possibility of losing its blessings. It gives me
infinite pain to reflect, that all the earnest endeavors of the
warmest friends of their country, to introduce a system promotive
of our happiness, may be blasted by a rejection, for
which I think with my honorable friend, that previous amendments
are but another name. The gentlemen in opposition
seem to insist on those amendments, as if they were all necessary
for the liberty and happiness of the people. Were I to
hazard an opinion on the subject, I would declare it infinitely
more safe in its present form, than it would be after introducing
amendments.
With respect to the proposition of the honorable gentleman
to my left [Mr Wythe] gentlemen apprehend, that by enumerating
three rights, it implied there were no more. The
observations made by a gentleman lately up, on that subject,
correspond precisely with my opinion. That resolution declares,
that the powers granted by the proposed constitution,
are the gift of the people, and may be resumed by them when
perverted to their oppression, and every power not granted
thereby, remains with the people, and at their will. It adds
likewise, that no right of any denomination, can be cancelled,
abridged, restrained or modified, by the general government,
or any of its officers, except in those instances in which power
is given by the constitution for these purposes. There cannot
be a more positive and unequivocal declaration of the principles
of the adoption, that every thing not granted, is reserved.
This is obviously and self-evidently the case, without the
declaration.—Can the general government exercise any power
not delegated? If an enumeration be made of our rights, will
it not be implied, that every thing omitted, is given to the
general government? Has not the honorable gentleman himself,
admitted, that an imperfect enumeration is dangerous?
Does the constitution say that they shall not alter the law of
descents, or do those things which would subvert the whole
system of the state laws? If he did, what was not excepted,
would be granted. Does it follow from the omission of such
restrictions, that they can exercise powers not delegated?
The reverse of the proposition holds. The delegation alone
warrants the exercise of any power.
With respect to the amendments, proposed by the honorable
gentleman, it ought to be considered how far they are good.
As far as they are palpably and insuperably objectionable,
they ought to be opposed. One amendment he proposes is,
that any army which shall be necessary, shall be raised by the
consent of two-thirds of the states. I most devoutly wish,
There can be no harm in declaring, that standing
armies in time of peace, are dangerous to liberty, and ought to
be avoided, as far as it may be consistent with the protection,
of the community. But when we come to say, that the national
security shall depend not on a majority of the people of
America, but that it may be frustrated by less than one-third
of the people of America, I ask if this be a safe or proper
mode? What part of the United States are most likely to
stand in need of this protection? The weak parts, which are
the southern states. Will it be safe to leave the United States
at the mercy of one-third of the states, a number, which
may comprise a very small proportion of the American people?
They may all be in that part of America which is least exposed
to danger. As far as a remote situation from danger, would
render exertions for public defence less active, so far the
southern states would be endangered.
The regulation of commerce, he further proposed, should depend
on two-thirds of both houses. I wish I could recollect
the history of this matter; but I cannot call it to mind with
sufficient exactness. But I recollect the reasoning of some
gentlemen on that subject. It was said, and I believe with
truth, that every part of America, does not stand in equal
need of security. It was observed, that the northern states
were most competent to their own safety. Was it reasonable,
asked they, that they should bind themselves to the defence
of the southern states, and still be left at the mercy of the
minority for commercial advantages? Should it be in the
power of the minority to deprive them of this and other advantages,
when they were bound to defend the whole union,
it might be a disadvantage for them to confederate.
These were his arguments. This policy of guarding against
political inconveniences, by enabling a small part of the community
to oppose the government, and subjecting the majority
to a small minority is fallacious. In some cases it
may be good; in others it may be fatal. In all cases it puts
concerns the majority.
I was struck with surprise when I head him express himself
alarmed with respect to the emancipation of slaves. Let me
ask, if they should even attempt it, if it will not be an
usurpation of power? There is no power to warrant it, in
that paper. If there be, I know it not. But why should it be
done? Says the honorable gentleman, for the general welfare
—it will infuse strength into our system. Can any member
of this committee suppose, that it will increase our strength?
Can any one believe, that the American councils will come into
a measure which will strip them of their property, discourage,
and alienate the affections of five-thirteenths of the union.
Why was nothing of this sort aimed at before? I believe
such an idea never entered into any American breast, nor do
I believe it ever will enter into the heads of those gentlemen
who substitute unsupported suspicions for reasons.
I am persuaded that the gentlemen who contend for previous
amendments are not aware of the dangers which must
result. Virginia, after having made opposition, will be
obliged to recede from it. Might not the nine states say with
a great deal of propriety—" It is not proper, decent, or right in
you, to demand that we should reverse what we have done.
Do as we have done—place confidence in us, as we have done
in one another—and then we shall freely, fairly and dispassionately
consider and investigate your propositions, and endeavour
to gratify your wishes; but if you do not do this, it
is more reasonable that you should yield to us, than we to
you. You cannot exist without us—you must be a member
of the union."
The case of Maryland, instanced by the gentleman, does not
hold. She would not agree to confederate, because the other
states would not assent to her claims of the western lands.
Was she gratified? No—she put herself like the rest. Nor
has she since been gratified. The lands are in the common
stock of the union.
As far as his amendments are not objectionable, or unsafe,
so far they may be subsequently recommended. Not because
they are necessary, but because they can produce no possible
danger, and may gratify some gentlemen's wishes. But I
never can consent to his previous amendments, because they
are pregnant with dreadful dangers.
TO GEORGE WASHINGTON.
We got through the Constitution by paragraphs today. Tomorrow
some proposition for closing the business will be made. On our side a
ratification involving a few declaratory truths not affecting its validity
will be tendered. The opposition will urge previous amendments.
Their conversation today seemed to betray despair. Col. Mason in
particular talked in a style which no other sentiment could have produced.
He held out the idea of civil convulsions as the effects of
obtruding the Government on the people. He was answered by several
and concluded with declaring his determination for himself to acquiesce
in the event whatever it might be. Mr. H—y endeavored
to gloss what had fallen from his friend, declared his aversion to the
Constitution to be such that he could not take the oath; but that he
would remain in peaceable submission to the result. We calculate
on a majority, but a bare one. It is possible nevertheless that some
adverse circumstance may happen. I am, Dr Sr in haste Yrs entirely.
—Wash. MSS.
TO AMBROSE MADISON.
Yesterday carried us through the discussion of the constitution by
paragraphs. Today will probably carry forward some proposition and
debates relative to the final step to be taken. The opposing party
will contend for previous amendments. On the other side a conciliatory
declaration of certain fundamental principles in favor of liberty,
in a form not affecting the validity and plenitude of the ratification, will
be proposed. The final question is likely to be decided by a small
majority. I do not know that either party despairs absolutely. The
friends of the Convention seem to be in the best spirits; and I hope
have the best reason to be so. At the same time it is not impossible
they may miscalculate their number, and that accidents may reduce
it below the requisite amount, two members on that side, who went
away with a purpose of returning are still absent, it is said; and a
third is so ill as to render his vote somewhat precarious. It may be
questioned whether on any estimate this loss if it shd. continue may
not endanger the results.
Yours affy.
—N. Y. Pub. Lib. MSS.
TO GEORGE WASHINGTON.
On the question to-day for previous amendments, the votes stood
8o ays—88 noes. On the final question the ratification passed 89
ayes—79 noes. Subsequent amendments will attend the act; but are
yet to be settled. The temper of the minority will be better known
to-morrow. The proceedings have been without flaw or pretext of it;
and there is no doubt that acquiescence if not cordiality will be manifested
by the unsuccessful party. Two of the leaders however betray
the effect of the disappointment, so far as it is marked in their countenances.
In haste, Yrs.
—Mad. MSS.
TO GEORGE WASHINGTON.
Your favor of the 2d Ulto was not recd till my arrival here on monday
evening. I found contrary to my expectation that not only a very
full house had been made on the first day, but that it had proceeded
to the appointment of the President & other officers. Mr. Pendleton
was put into the chair without opposition. Yesterday little more was
done than settling some forms and Resolving that no question general
or particular should be propounded till the whole plan should be considered
& debated, clause by clause. This was moved by Col. Mason,
and contrary to his expectations, concurred in by the other side. Today
the discussions commenced in Committee of the whole. The Governor
has declared the day of previous amendments passed, and thrown himself
fully into the federal scale. Henry & Mason made a lame figure
& appeared to take different and awkward ground. The federalists
are a good deal elated by the existing prospect. I dare not however
speak with certainty as to the decision. Kentucky has been extremely
tainted, is supposed to be generally adverse, and every piece of address
is going on privately to work on the local interests & prejudices of
that & other quarters. In haste I am
Dr Sir yrs affecty.—Wash. MSS.
The proceedings of the Convention were reported by Robertson
and published at Petersburg, Va., 1788, under the title: "Debates and
other Proceedings of the Convention of Virginia, convened at Richmond
on Monday the 2d day of June, 1788, for the purpose of deliberating
on the Constitution recommended by the Grand Federal Convention."
Elliot's Debates (1836), vol. iii., inaccurately reprints this volume. Hugh
Blair Grigsby's "Virginia Convention of 1788," Virginia Historical
Collections IX., is a skilful and valuable narrative account of the principal
characters in the convention and the debates. The MS. "Journal
of the Convention of Virginia" is in the Virginia State Library, but it
contains none of the debates. Madison's speeches, as given by Robertson
and reproduced in the text of this volume, were, he declared in
after life, reported with reasonable accuracy.
The convention first met, Monday, June 1, in the State House at
Richmond, but the hall was too small to accommodate the 170 delegates
and the numerous spectators, and an adjournment was taken to
the "New Academy on Shockoe Hill," a building erected by Chevalier
Quesnay for a French-American University. See Hunt's Life of
Madison, 148 et seq.
| The writings of James Madison, | |