The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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Tuesday June 19th in Committee of Whole on
the Propositions of Mr. Patterson,—
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 | The writings of James Madison, |  |
Tuesday June 19th in Committee of Whole on
the Propositions of Mr. Patterson,—[84]
The substitute offered yesterday by Mr. Dickenson
N. Y. N. J. Del. ay. Mass. Pa. V. N. C. S. C. Geo. no
large before the Committee
Mr. Madison. Much stress has been laid by some
to propose any other than a federal plan. To what
had been answered by others, he would only add,
plan would support this objection. One characteristic,
was that in a federal Government, the
but on the people collectively, on the States. Yet
in some instances as in piracies, captures &c. the
amendments to it proposed by Mr. Patterson, must
operate immediately on individuals. The other
appointments not immediately from the people, but
from the States which they respectively composed.
States, Connectt. & Rh. Island, the delegates to Congs.
were chosen, not by the Legislatures, but by the
change in this particular.
It had been alledged (by Mr. Patterson), that the
Confederation having been formed by unanimous
only. Does this doctrine result from the nature of
in the articles of Confederation? If we consider
compact by which individuals compose one Society,
and which must in its theoretic origin at
least, have been the unanimous act of the component
members, it cannot be said that no dissolution
of the compact can be effected without unanimous
consent. A breach of the fundamental principles
of the compact by a part of the Society would certainly
absolve the other part from their obligations
to it. If the breach of any article by any of the
parties, does not set the others at liberty, it is because,
the contrary is implied in the compact itself,
and particularly by that law of it, which gives an
indefinite authority to the majority to bind the
whole in all cases. This latter circumstance shews
that we are not to consider the federal Union as
analagous to the social compact of individuals: for
if it were so, a Majority would have a right to bind
the rest, and even to form a new Constitution for
the whole, which the Gentln. from N. Jersey would
be among the last to admit. If we consider the
federal Union as analagous not to the Social compacts
among individual men: but to the conventions
among individual States, What is the doctrine resulting
from these conventions? Clearly, according
to the Expositors of the law of Nations, that a
breach of any one article by any one party, leaves
all the other parties at liberty, to consider the whole
convention as dissolved, unless they choose rather
to compel the delinquent party to repair the breach.
In some treaties indeed it is expressly stipulated
this consequence, and even that particular articles
shall remain in force during war, which in general is
understood to dissolve all subsisting Treaties. But
are there any exceptions of this sort to the Articles
of Confederation? So far from it that there is not
even an express stipulation that force shall be used
to compell an offending member of the Union to discharge
its duty. He observed that the violations of
the federal articles had been numerous & notorious.
Among the most notorious was an act of N. Jersey
herself; by which she expressly refused to comply
with a Constitutional requisition of Congs. and
yielded no farther to the expostulations of their
deputies, than barely to rescind her vote of refusal
without passing any positive act of compliance. He
did not wish to draw any rigid inferences from
these observations. He thought it proper however
that the true nature of the existing confederacy
should be investigated, and he was not anxious to
strengthen the foundations on which it now stands.
Proceeding to the consideration of Mr. Patterson's
plan, he stated the object of a proper plan to be twofold.
1. to preserve the Union. 2. to provide a Governmt.
that will remedy the evils felt by the States
both in their united and individual capacities. Examine
Mr. P's. plan, & say whether it promises satisfaction
in these respects.
- Will it prevent the violations of the law of
nations & of Treaties which if not prevented must
involve us in the calamities of foreign wars? The
212tendency of the States to these violations has been
manifested in sundry instances. The files of Congs.
contain complaints already, from almost every
Nation with which treaties have been formed. Hitherto
indulgence has been shewn to us. This cannot
be the permanent disposition of foreign nations. A
rupture with other powers is among the greatest of
national calamities. It ought therefore to be effectually
provided that no part of a nation shall have
it in its power to bring them on the whole. The
existing Confederacy does not sufficiently provide
against this evil. The proposed amendment to it
does not supply the omission. It leaves the will of
the States as uncontrouled as ever. - Will it prevent encroachments on the federal
authority? A tendency to such encroachments has
been sufficiently exemplified, among ourselves, as
well as in every other confederated republic antient
and modern. By the federal articles, transactions
with the Indians appertain to Congs. Yet in several
instances, the States have entered into treaties &
wars with them. In like manner no two or more
States can form among themselves any treaties &c.
without the consent of Congs. Yet Virga. & Maryd.
in one instance—Pena. & N. Jersey in another, have
entered into compacts, without previous application
or subsequent apology. No State again can of right
raise troops in time of peace without the like consent.
Of all cases of the league, this seems to require the
most scrupulous observance. Has not Massts, notwithstanding,
the most powerful member of the
213Union, already raised a body of troops? Is she not
now augmenting them, without having even deigned
to apprise Congs. of Her intention? In fine—Have
we not seen the public land dealt out to Cont. to
bribe her acquiescence in the decree constitutionally
awarded agst. her claim on the territory of Pena.: for no
other possible motive can account for the policy of
Congs. in that measure?—If we recur to the examples
of other confederacies, we shall find in all of them
the same tendency of the parts to encroach on the
authority of the whole. He then reviewed the Amphyctionic
& Achæan confederacies among the
antients, and the Helvetic, Germanic & Belgic among
the moderns, tracing their analogy to the U. States
in the constitution and extent of their federal
authorities—in the tendency of the particular members
to usurp on these authorities, and to bring confusion
& ruin on the whole.—He observed that the
plan of Mr. Pat[er]son, besides omitting a controul
over the States as a general defence of the federal
prerogatives was particularly defective in two of its
provisions. 1. Its ratification was not to be by the
people at large, but by the legislatures. It could not
therefore render the acts of Congs. in pursuance of
their powers, even legally paramount to the acts of
the States. 2. It gave to the federal Tribunal an
appellate jurisdiction only—even in the criminal
cases enumerated. The necessity of any such provision
supposed a danger of undue acquittals in the
State tribunals, of what avail cd. an appellate tribunal
be, after an acquittal? Besides in most if not
214all of the States, the Executives have by their respective
Constitutions, the right of pardg. How could
this be taken from them by a legislative ratification
only? - Will it prevent trespasses of the States on each
other? Of these enough has been already seen. He
instanced Acts of Virga. & Maryland which gave a
preference to their own Citizens in cases where the
Citizens of other States are entitled to equality of
privileges by the Articles of Confederation. He considered
the emissions of paper money & other kindred
measures as also aggressions. The States
relatively to one another being each of them either
Debtor or Creditor; The creditor States must suffer
unjustly from every emission by the debtor States.
We have seen retaliating Acts on the subject which
threatened danger not to the harmony only, but the
tranquility of the Union. The plan of Mr. Paterson,
not giving even a negative on the Acts of the States,
left them as much at liberty as ever to execute their
unrighteous projects agst. each other. - Will it secure the internal tranquillity of the
States themselves? The insurrections in Massts. admonished
all the States of the danger to which they
were exposed. Yet the plan of Mr. P. contained no
provisions for supplying the defect of the Confederation
on this point. According to the Republican
theory indeed, Right & power being both vested
in the majority, are held to be synonymous. According
to fact & experience, a minority may in an
appeal to force be an overmatch for the majority.
2151. If the minority happen to include all such as possess
the skill & habits of military life, with such as
possess the great pecuniary resources, one third may
conquer the remaining two thirds. 2. one third of
those who participate in the choice of rulers may be
rendered a majority by the accession of those whose
poverty disqualifies them from a suffrage, & who
for obvious reasons may be more ready to join the
standard of sedition than that of established Government.
3. where slavery exists, the Republican
Theory becomes still more fallacious. - Will it secure a good internal legislation & administration
to the particular States? In developing
the evils which vitiate the political system of
the U. S. it is proper to take into view those which
prevail within the States individually as well as
those which affect them collectively: Since the former
indirectly affect the whole; and there is great
reason to believe that the pressure of them had a full
share in the motives which produced the present
Convention. Under this head he enumerated and
animadverted on 1. the multiplicity of the laws
passed by the several States. 2. the mutability of
their laws. 3. the injustice of them. 4. the impotence
of them: observing that Mr. Patterson's plan contained
no remedy for this dreadful class of evils, and
could not therefore be received as an adequate provision
for the exigencies of the Community. - Will it secure the Union agst. the influence of
foreign powers over its members. He pretended
not to say that any such influence had yet been
216tried: but it was naturally to be expected that occasions
would produce it. As lessons which claimed
particular attention, he cited the intrigues practised
among the Amphyctionic Confederates first by the
Kings of Persia, and afterwards fatally by Philip of
Macedon: Among the Achæans, first by Macedon &
afterwards no less fatally by Rome: among the Swiss
by Austria, France & the lesser neighbouring powers:
among the members of the Germanic Body by France.
England, Spain & Russia—And in the Belgic Republic,
by all the great neighbouring powers. The plan
of Mr. Patterson, not giving to the general Councils
any negative on the will of the particular States, left
the door open for the like pernicious Machinations
among ourselves. - He begged the smaller States which were most
attached to Mr. Patterson's plan to consider the
situation in which it would leave them. In the first
place they would continue to bear the whole expence
of maintaining their Delegates in Congress. It
ought not to be said that if they were willing to bear
this burthen, no others had a right to complain. As
far as it led the small States to forbear keeping
up a representation, by which the public business
was delayed, it was evidently a matter of common
concern. An examination of the minutes of Congress
would satisfy every one that the public business
had been frequently delayed by this cause; and
that the States most frequently unrepresented in
Congs. were not the larger States. He reminded the
Convention of another consequence of leaving on a
217small State the burden of maintaining a Representation
in Congs. During a considerable period of
the War, one of the Representatives of Delaware,
in whom alone before the signing of the Confederation
the entire vote of that State and after that
event one half of its vote, frequently resided, was a
Citizen & Resident of Pena. and held an office in his
own State incompatible with an appointment from
it to Congs. During another period, the same State
was represented by three delegates two of whom
were citizens of Penna. and the third a Citizen of
New Jersey. These expedients must have been intended
to avoid the burden of supporting Delegates
from their own State. But whatever might have
been ye. cause, was not in effect the vote of one State
doubled, and the influence of another increased by
it? In the 2d. place the coercion, on which the efficacy
of the plan depends, can never be exerted but
on themselves. The larger States will be impregnable,
the smaller only can feel the vengeance of it.
He illustrated the position by the history of the
Amphyctionic confederates: and the ban of the German
Empire. It was the cobweb Wch. could entangle
the weak, but would be the sport of the strong. - He begged them to consider the situation in
which they would remain in case their pertinacious
adherence to an inadmissible plan, should prevent
the adoption of any plan. The contemplation of
such an event was painful; but it would be prudent
to submit to the task of examining it at a distance,
that the means of escaping it might be the more
218readily embraced. Let the Union of the States be
dissolved, and one of two consequences must happen.
Either the States must remain individually
independent & sovereign; or two or more Confederacies
must be formed among them. In the first
event would the small States be more secure agst. the
ambition & power of their larger neighbours, than
they would be under a General Government pervading
with equal energy every part of the Empire, and
having an equal interest in protecting every part
agst. every other part? In the second, can the smaller
expect that their larger neighbours would confederate
with them on the principle of the present
Confederacy, which gives to each member, an equal
suffrage; or that they would exact less severe concessions
from the smaller States, than are proposed
in the scheme of Mr. Randolph?
1.
2.
3.
4.
5.
6.
7.
8.
The great difficulty lies in the affair of Representation;
and if this could be adjusted, all others would
be surmountable. It was admitted by both the
gentlemen from N. Jersey, (Mr. Brearly and Mr.
Patterson) that it would not be just to allow Virga.
which was 16 times as large as Delaware an equal
vote only. Their language was that it would not
be safe for Delaware to allow Virga. 16 times as many
votes. The expedient proposed by them was that
all the States should be thrown into one mass and
a new partition be made into 13 equal parts. Would
such a scheme be practicable? The dissimilarities
existing in the rules of property, as well as in the
manners, habits and prejudices of the different
It had been found impossible for the power of one
of the most absolute princes in Europe (K. of France)
directed by the wisdom of one of the most enlightened
and patriotic Ministers (Mr. Neckar) that any
age has produced, to equalize in some points only
the different usages & regulations of the different
provinces. But admitting a general amalgamation
and repartition of the States to be practicable, and
the danger apprehended by the smaller States from
a proportional representation to be real; would not
a particular and voluntary coalition of these with
their neighbours, be less inconvenient to the whole
community, and equally effectual for their own
safety. If N. Jersey or Delaware conceived that an
advantage would accrue to them from an equalization
of the States, in which case they would necessary
form a junction with their neighbours, why
might not this end be attained by leaving them at
liberty by the Constitution to form such a junction
whenever they pleased? And why should they wish
to obtrude a like arrangement on all the States, when
it was, to say the least, extremely difficult, would
be obnoxious to many of the States, and when neither
the inconveniency, nor the benefit of the expedient
to themselves, would be lessened by confining
it to themselves.—The prospect of many new States
to the Westward was another consideration of importance.
If they should come into the Union at
all, they would come when they contained but few
inhabitants. If they shd. be entitled to vote according
right & safe. Let them have an equal vote, and
a more objectionable minority than ever might give
law to the whole.[85]
On a question for postponing generally the 1st
proposition of Mr. Patterson's plan, it was agreed
to: N. Y. & N. J. only being no.
On the question moved by Mr. King whether the
Com̃itee should rise & Mr. Randolph's proposition
be reported without alteration, which was in fact
a question whether Mr. R's should be adhered to as
preferable to those of Mr. Patterson;
Massts. ay. Cont. ay. N. Y. no. N. J. no. Pa. ay. Del.
no. Md. divd. Va. ay. N. C. ay. S. C. ay. Geo. ay.
Copy of the Resolns. of Mr. R. as altered in Come.
and reported to the House.
(Of Mr. Randolph's plan as reported from the
Com̃ittee)—the 1. propos: "that a Natl. Govt. ought
to be established consisting &c." being taken up
in the House.
Mr. Wilson observed that by a Nat1. Govt. he did
not mean one that would swallow up the State Govts.
as seemed to be wished by some gentlemen. He
was tenacious of the idea of preserving the latter.
He thought, contrary to the opinion of (Col. Hamilton)
that they might not only subsist but subsist
on friendly terms with the former. They were absolutely
former could not reach. All large Governments
must be subdivided into lesser jurisdictions. As
Examples he mentioned Persia, Rome, and particularly
the divisions & subdivisions of England by
Alfred.
Col. Hamilton coincided with the proposition as
it stood in the Report. He had not been understood
yesterday. By an abolition of the States, he
meant that no boundary could be drawn between
the National & State Legislatures; that the former
must therefore have indefinite authority. If it were
limited at all, the rivalship of the States would gradually
subvert it. Even as Corporations the extent
of some of them as Va. Massts &c would be formidable.
As States, he thought they ought to be
abolished. But he admitted the necessity of leaving
in them, subordinate jurisdictions. The examples
of Persia & the Roman Empire, cited by
(Mr. Wilson) were he thought in favor of his doctrine:
the great powers delegated to the Satraps &
proconsuls having frequently produced revolts, and
schemes of independence.
Mr. King wished as every thing depended on this
proposition, that no objections might be improperly
indulged agst. the phraseology of it. He conceived
that the import of the term "States" "Sovereignty"
"national" "federal," had been often used & applied
in the discussions inaccurately & delusively.
The States were not "Sovereigns" in the sense contended
for by some. They did not possess the
war, nor peace, nor alliances nor treaties. Considering
them as political Beings, they were dumb, for
they could not speak to any forẽgn Sovereign whatever.
They were deaf, for they could not hear any
propositions from such Sovereign. They had not
even the organs or faculties of defence or offence, for
they could not of themselves raise troops, or equip
vessels, for war. On the other side, if the Union of
the States comprises the idea of a confederation, it
comprises that also of consolidation. A Union of
the States is a Union of the men composing them,
from whence a national character results to the whole.
Congs. can act alone without the States—they can
act & their acts will be binding agst.the Instructions
of the States. If they declare war: war is de jure
declared—captures made in pursuance of it are lawful
—no Acts of the States can vary the situation,
or prevent the judicial consequences. If the States
therefore retained some portion of their sovereignty,
they had certainly divested themselves of essential
portions of it. If they formed a confederacy in
some respects—they formed a Nation in others. The
Convention could clearly deliberate on & propose
any alterations that Congs. could have done under
ye. federal articles, and Could not Congs. propose
by virtue of the last article, a change in any article
whatever; and as well that relating to the equality
of suffrage, as any other. He made these remarks
to obviate some scruples which had been expressed.
He doubted much the practicability of annihilating
ought to be taken from them.[86]
Mr. Martin.[87]
said he considered that the separation
from G. B. placed the 13 States in a state of Nature
towards each other; that they would have remained
in that state till this time, but for the confederation;
that they entered into the Confederation on the footing
of equality; that they met now to amend it on
the same footing; and that he could never accede
to a plan that would introduce an inequality and
lay 10 States at the mercy of Va. Massts. and Penna.
Mr. Wilson. could not admit the doctrine that
when the Colonies became independent of G. Britain,
they became independent also of each other. He
read the declaration of Independence, observing
be free & independent States; and inferring that
they were independent, not individually but Unitedly
and that they were confederated as they were independent,
States.
Col. Hamilton assented to the doctrine of Mr.
Wilson. He denied the doctrine that the States
were thrown into a State of Nature He was not
yet prepared to admit the doctrine that the Confederacy,
could be dissolved by partial infractions of it.
He admitted that the States met now on an equal
footing but could see no inference from that against
concerting a change of the system in this particular.
He took this occasion of observing for the purpose
of appeasing the fears of the small States, that two
circumstances would render them secure under a
National Govt. in which they might lose the equality
of rank they now held: one was the local situation
of the 3 largest States Virga. Massts. & Pa. They were
separated from each other by distance of place, and
equally so, by all the peculiarities which distinguish
the interests of one State from those of another. No
combination therefore could be dreaded. In the
second place, as there was a gradation in the States
from Va. the largest down to Delaware the smallest,
it would always happen that ambitious combinations
among a few States might & wd. be counteracted
by defensive combinations of greater extent
among the rest. No combination has been seen
among the large Counties merely as such, agst. lesser
Counties. The more close the Union of the States,
the less opportunity will be allowed to the stronger
States to injure the weaker.
Adjd.
"Mr. Dickinson supposed that there were good regulations in both.
Let us therefore contrast the one with the other, and consolidate such
parts of them as the committee approve."—Yates, Secret Proceedings,
etc., 140.
King, in his notes, gives a résumé of his speech. It illustrates the
accuracy of Madison's reporting:
"Answer (R. King) The States under the confed. are not sovereign
States they can do no act but such as are of a subordinate nature or
such as terminate in themselves—and even these are restrained—
coinage, P. office &c they are wholly incompetent to the exercise of
any of the gt. & distinguishing acts of sovereignty—They can neither
make nor receive (embassies) to or from any other sovereign—they
have not the powers of injuring another or of defending themselves
from an Injury offered from one another—they are deaf, dumb and
impotent—these Faculties are yielded up and the U. S. in C. Assd.
hold and possess them, and they alone can exercise them—they are
so far out of the controul of the separate States yt. if every State in
the Union was to instruct yr. Deleg., and those Delegates within ye
powers of the Arts. of Union shd. do an act in violation of their Instructions
it wd. nevertheless be valid. If they declared a war, any
giving aid or comfort to the enemy wd. be Treason; if peace, any
capture on the high seas wd. be piracy. This remark proves yt. the
States are now subordinate corporations or societies and not sovereigns
—these imperfect States are the confederates and they are the electors
of the magistrates who exercise the national sovereignty. The Articles
of Confedr. and perpetual Union, are partly federal & partly of
the nature of a constitution or form of Govt. arising from and applying
to the Citizens of the U. S. & not from the individual States.
"The only criterion of determining what is federal & what is national
is this, those acts which are for the government of the States only
are purely federal, those which are for the government of the Citizens
of the individual States are national and not federal.
"If then the articles of Confedr. & perpetual union have this twofold
capacity, and if they provide for an alteration in a certain mode,
why may not they be so altered as that the federal article may be
changed to a national one, and the national to a federal? I see no
argument that can be objected to the authority. The 5th article regulates
the influence of the several States and makes them equal—does
not the confed. authorize this alteration, that instead of this Equality,
one state may have double the Influence of another—I conceive it does
—and so of every Article except that wh. destroys the Idea of a confedy.
I think it may be proved that every article may be totally
altered provided you have one guarantying to each State the right of
regulating its private & internal affairs in the manner of a subordinate
corporation.
"But admitting that the Arts. of Confed. & perpet. Union, or the
powers of the Legis. did not extend to the proposed Reform; yet the
public Deputations & the public Danger require it—the system proposed
to be adopted is no scheme of a day, calculated to postpone the
hour of Danger, & thus leave it to fall with double ruin on our successors
—It is no crude and undigested plan; the child of narrow and
unextensive views, brought forward under the Auspices of Cowardice
& Irresolution—It is a measure of Decision, it is the foundation of
Freedom & of national Glory. It will draw on itself and be able to
support the severest scrutiny & Examination. It is no idle experiment,
no romantic speculation—the measure forces itself upon wise men,
and if they have not firmness to look it in the face and protect it—
Farewell to the Freedom of our Government—our military glory will
be tarnished and our boasts of Freedom will be the scorn of the Enemies
of Liberty."—Life and Correspondence of Rufus King, i., 602, n.
"Mr. Martin was educated for the Bar, and is Attorney general
for the State of Maryland. This Gentleman possesses a good deal of
information, but he has a very bad delivery, and so extremely prolix,
that he never speaks without tiring the patience of all who hear him.
He is about 34 years of age."—Pierce's Notes, Am. Hist. Rev., iii.,
330.
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