Chapter VIII: Part 8

M^r Madison. Much stress has been laid by some gentlemen on the want of power in the Convention to propose any other than a _federal_ plan. To what had been answered by others, he would only add, that neither of the characteristics attached to a _federal_ plan would support this objection. One characteristic, was that in a _federal_ Government, the power was exercised not on the people individually; but on the people _collectively_, on the _States_. Yet in some instances as in piracies, captures &c. the existing Confederacy, and in many instances the amendments to it proposed by M^r Patterson, must operate immediately on individuals. The other characteristic was, that a _federal_ Gov^t derived its appointments not immediately from the people, but from the States which they respectively composed. Here too were facts on the other side. In two of the States, Connect^t & Rh. Island, the delegates to Cong^s were chosen, not by the Legislatures, but by the people at large; and the plan of M^r P. intended no change in this particular.

It had been alledged (by M^r Patterson), that the Confederation having been formed by unanimous consent, could be dissolved by unanimous Consent only. Does this doctrine result from the nature of compacts? does it arise from any particular stipulation in the articles of Confederation? If we consider the federal Union as analagous to the fundamental compact by which individuals compose one Society, and which must in its theoretic origin at least, have been the unanimous act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact by a part of the Society would certainly absolve the other part from their obligations to it. If the breach of _any_ article by _any_ of the parties, does not set the others at liberty, it is because, the contrary is _implied_ in the compact itself, and particularly by that law of it, which gives an indefinite authority to the majority to bind the whole in all cases. This latter circumstance 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 Gentl^n 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 that a violation of particular articles shall not have 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 Cong^s 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 M^r Patterson's plan, he stated the object of a proper plan to be twofold. 1. to preserve the Union. 2. to provide a Governm^t that will remedy the evils felt by the States both in their united and individual capacities. Examine M^r P'^s plan, & say whether it promises satisfaction in these respects.

1. 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 tendency of the States to these violations has been manifested in sundry instances. The files of Cong^s 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.

2. Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently exemplified, among ourselves, as well as in every other confederated republic antient and modern. By the federal articles, transactions with the Indians appertain to Cong^s. 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 Cong^s. Yet Virg^a & Mary^d in one instance--Pen^a & 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 Mass^{ts}, notwithstanding, the most powerful member of the Union, already raised a body of troops? Is she not now augmenting them, without having even deigned to apprise Cong^s of Her intention? In fine--Have we not seen the public land dealt out to Con^t to bribe her acquiescence in the decree constitutionally awarded ag^{st} her claim on the territory of Pen^a: for no other possible motive can account for the policy of Cong^s 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 Cong^s 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 c^d an appellate tribunal be, after an acquittal? Besides in most if not all of the States, the Executives have by their respective _Constitutions_, the right of pard^g. How could this be taken from them by a _legislative_ ratification only?

3. Will it prevent trespasses of the States on each other? Of these enough has been already seen. He instanced Acts of Virg^a & 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 tranquillity of the Union. The plan of M^r 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 ag^{st} each other.

4. Will it secure the internal tranquillity of the States themselves? The insurrections in Mass^{ts} admonished all the States of the danger to which they were exposed. Yet the plan of M^r 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. 1. 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.

5. 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 M^r Patterson's plan contained no remedy for this dreadful class of evils, and could not therefore be received as an adequate provision for the exigencies of the Community.

6. Will it secure the Union ag^{st} the influence of foreign powers over its members. He pretended not to say that any such influence had yet been tried: but it was naturally to be expected that occasions would produce it. As lessons which claimed particular attention, he cited the intrigues practised among the 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 M^r Patterson, not giving to the general Councils any negative on the will of the particular States, left the door open for the like pernicious Machinations among ourselves.

7. He begged the smaller States which were most attached to M^r 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 Cong^s were not the larger States. He reminded the Convention of another consequence of leaving on a small State the burden of maintaining a Representation in Cong^s. 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 Pen^a and held an office in his own State incompatible with an appointment from it to Cong^s. During another period, the same State was represented by three delegates two of whom were citizens of Penn^a 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 y^e cause, was not in effect the vote of one State doubled, and the influence of another increased by it? In the 2^d 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 w^{ch} could entangle the weak, but would be the sport of the strong.

8. He begged them to consider the situation in which they would remain in case their pertinacious adherence to an inadmissible plan, should prevent the adoption of any plan. The contemplation of such an event was painful; but it would be prudent to submit to the task of examining it at a distance, that the means of escaping it might be the more readily embraced. Let the Union of the States be dissolved, and one of two consequences must happen. Either the States must remain individually independent & sovereign; or two or more Confederacies must be formed among them. In the first event would the small States be more secure ag^{st} 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 ag^{st} 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 M^r Randolph?

The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from N. Jersey, (M^r Brearly and M^r Patterson) that it would not be _just to allow Virg^a_ 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 Virg^a 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 States, amounted to a prohibition of the attempt. It had been found impossible for the power of one of the most absolute princes in Europe (K. of France) directed by the wisdom of one of the most enlightened and patriotic Ministers (M^r 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 necessarily form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the 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 sh^d be entitled to vote according to their proportions of inhabitants, all would be right & safe. Let them have an equal vote, and a more objectionable minority than ever might give law to the whole.[91]

[91] "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.

On a question for postponing generally the 1^{st} proposition of M^r Patterson's plan, it was agreed to: N. Y. & N. J. only being no.

On the question moved by M^r King whether the Co[~m]itee should rise & M^r Randolph's proposition be reported without alteration, which was in fact a question whether M^r R's should be adhered to as preferable to those of M^r Patterson;

Mass^{ts} ay. Con^t ay. N. Y. no. N. J. no. P^a ay. Del. no.
M^d div^d. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Copy of the Resol^{ns} of Mr. R. as altered in Com^e and reported to the House.

(Of M^r Randolph's plan as reported from the Co[~m]ittee)--the 1. propos: "that a Nat^l Gov^t ought to be established consisting &c." being taken up in the House.

M^r Wilson observed that by a Nat^l Gov^t he did not mean one that would swallow up the State Gov^{ts} 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 necessary for certain purposes which the former could not reach. All large Governments must be subdivided into lesser jurisdictions. As Examples he mentioned Persia, Rome, and particularly the divisions & 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 V^a Mass^{ts} &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 (M^r 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.

M^r King wished as every thing depended on this proposition, that no objections might be improperly indulged ag^{st} 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 peculiar features of sovereignty, they could not make war, nor peace, nor alliances nor treaties. Considering them as political Beings, they were dumb, for they could not speak to any for[~e]gn 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. Cong^s can act alone without the States--they can act & their acts will be binding ag^{st} 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 Cong^s could have done under y^e federal articles, and Could not Cong^s propose by virtue of the last article, a change in any article whatever; and as well that relating to the equality of suffrage, as any other. He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them.[92]

[92] 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.

M^r Martin.[93] 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 V^a Mass^{ts} and Penn^a.

[93] "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.

M^r 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 thereon that the _United Colonies_ were declared to 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 M^r 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 Gov^t in which they might lose the equality of rank they now held: one was the local situation of the 3 largest States Virg^a Mass^{ts} & P^a. 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 V^a the largest down to Delaware the smallest, it would always happen that ambitious combinations among a few States might & w^d be counteracted by defensive combinations of greater extent among the rest. No combination has been seen among the large Counties merely as such, ag^{st} lesser Counties. The more close the Union of the States, and the more compleat the authority of the whole: the less opportunity will be allowed to the stronger States to injure the weaker.

Adj^d.

WEDNESDAY JUNE 20. 1897. IN CONVENTION.

M^r William Blount from N. Carolina took his seat.

1^{st} propos: of the Report of Com^e of the whole, before the House.

M^r Elseworth 2^{ded} by M^r Gorham, moves to alter it so as to run "that the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary." This alteration he said would drop the word _national_, and retain the proper title "the United States." He could not admit the doctrine that a breach of any of the federal articles could dissolve the whole. It would be highly dangerous not to consider the Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment of the articles of the Confederation, since under this idea the authority of the Legislatures could ratify it. If they are unwilling, the people will be so too. If the plan goes forth to the people for ratification several succeeding Conventions within the States would be unavoidable. He did not like these conventions. They were better fitted to pull down than to build up Constitutions.

M^r Randolph. did not object to the change of expression, but apprised the gentleman who wished for it that he did not admit it for the reasons assigned; particularly that of getting rid of a reference to the people for ratification. The motion of M^r Elsew^{th} was acquiesced in nem: con:

The 2^d Resol: "that the National Legislature ought to consist of two branches" taken up, the word "national" struck out as of course.

_M^r Lansing._ observed that the true question here was, whether the Convention would adhere to or depart from the foundation of the present Confederacy; and moved instead of the 2^d Resolution, "that the powers of Legislation be vested in the U. States in Congress." He had already assigned two reasons ag^{st} such an innovation as was proposed: 1. the want of competent powers in the Convention.--2. the state of the public mind. It had been observed by (M^r Madison) in discussing the first point, that in two States the Delegates to Cong^s were chosen by the people. Notwithstanding the first appearance of this remark, it had in fact no weight, as the Delegates however chosen, did not represent the people merely as so many individuals; but as forming a Sovereign State. (Mr. Randolph) put it, he said, on its true footing namely that the public safety superseded the scruple arising from the review of our powers. But in order to feel the force of this consideration, the same impression must be had of the public danger. He had not himself the same impression, and could not therefore dismiss his scruple. (M^r Wilson) contended that as the Convention were only to recommend, they might recommend what they pleased. He differed much from him. Any act whatever of so respectable a body must have a great effect, and if it does not succeed, will be a source of great dissentions. He admitted that there was no certain criterion of the Public mind on the subject. He therefore recurred to the evidence of it given by the opposition in the States to the scheme of an Impost. It could not be expected that those possessing Sovereignty could ever voluntarily part with it. It was not to be expected from any one State, much less from thirteen. He proceeded to make some observations on the plan itself and the argum^{ts} urged in support of it. The point of Representation could receive no elucidation from the case of England. The corruption of the boroughs did not proceed from their comparative smallness; but from the actual fewness of the inhabitants, some of them not having more than one or two. A great inequality existed in the Counties of England. Yet the like complaint of peculiar corruption in the small ones had not been made. It had been said that Congress represent the State Prejudices: will not any other body whether chosen by the Legislatures or people of the States, also represent their prejudices? It had been asserted by his colleague (Col. Hamilton) that there was no coincidence of interests among the large States that ought to excite fears of oppression in the smaller. If it were true that such a uniformity of interests existed among the States, there was equal safety for all of them, whether the representation remained as heretofore, or were proportioned as now proposed. It is proposed that the Gen^l Legislature shall have a negative on the laws of the States. Is it conceivable that there will be leisure for such a task? There will on the most moderate calculation, be as many Acts sent up from the States as there are days in the year. Will the members of the General Legislature be competent Judges? Will a gentleman from Georgia be a judge of the expediency of a law which is to operate in N. Hampshire. Such a Negative would be more injurious than that of Great Britain heretofore was. It is said that the National Gov^t must have the influence arising from the grant of offices and honors. In order to render such a Government effectual he believed such an influence to be necessary. But if the States will not agree to it, it is in vain, worse than in vain to make the proposition. If this influence is to be attained, the States must be entirely abolished. Will any one say this would ever be agreed to? He doubted whether any Gen^l Government equally beneficial to all can be attained. That now under consideration he is sure, must be utterly unattainable. He had another objection. The system was too novel & complex. No man could foresee what its operation will be either with respect to the Gen^l Gov^t or the State Gov^{ts}. One or other it has been surmised must absorb the whole.

Col. Mason. did not expect this point would have been reagitated. The essential differences between the two plans, had been clearly stated. The principal objections ag^{st} that of M^r R. were the _want of power_ & the _want of practicability_. There can be no weight in the first as the fiat is not to be _here_, but in the people. He thought with his colleague M^r R. that there were besides certain crisises, in which all the ordinary cautions yielded to public necessity. He gave as an example, the eventual Treaty with G. B. in forming which the Co[~m]^{srs} of the U. S. had boldly disregarded the improvident shackles of Cong^s had given to their Country an honorable & happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass. The _impracticability_ of gaining the public concurrence he thought was still more groundless. (M^r Lansing) had cited the attempts of Congress to gain an enlargement of their powers, and had inferred from the miscarriage of these attempts, the hopelessness of the plan which he (M^r L) opposed. He thought a very different inference ought to have been drawn; viz that the plan which (M^r L) espoused, and which proposed to augment the powers of Congress, never could be expected to succeed. He meant not to throw any reflections on Cong^s as a body, much less on any particular members of it. He meant however to speak his sentiments without reserve on this subject; it was a privilege of age, and perhaps the only compensation which nature had given for, the privation of so many other enjoyments: and he should not scruple to exercise it freely. Is it to be thought that the people of America, so watchful over their interests; so jealous of their liberties, will give up their all, will surrender both the sword and the purse, to the same body, and that too not chosen immediately by themselves? They never will. They never ought. Will they trust such a body, with the regulation of their trade, with the regulation of their taxes; with all the other great powers, which are in contemplation? Will they give unbounded confidence to a secret Journal--to the intrigues--to the factions which in the nature of things appertain to such an Assembly? If any man doubts the existence of these characters of Congress, let him consult their Journals for the years 78, 79, & 80.--It will be said, that if the people are averse to parting with power, why is it hoped that they will part with it to a National Legislature. The proper answer is that in this case they do not part with power: they only transfer it from one sett of immediate Representatives to another sett.--Much has been said of the unsettled state of the mind of the people, he believed the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others. In two points he was sure it was well settled. 1. in an attachment to Republican Government. 2. in an attachment to more than one branch in the Legislature. Their constitutions accord so generally in both these circumstances, that they seem almost to have been preconcerted. This must either have been a miracle, or have resulted from the genius of the people. The only exceptions to the establishm^t of two branches in the Legislatures are the State of P^a & Cong^s and the latter the only single one not chosen by the people themselves. What has been the consequence? The people have been constantly averse to giving that Body further powers--It was acknowledged by (M^r Patterson) that his plan could not be enforced without military coercion. Does he consider the force of this concession. The most jarring elements of Nature; fire & water themselves are not more incompatible that[n] such a mixture of civil liberty and military execution. Will the militia march from one State to another, in order to collect the arrears of taxes from the delinquent members of the Republic? Will they maintain an army for this purpose? Will not the Citizens of the invaded State assist one another till they rise as one Man, and shake off the Union altogether. Rebellion is the only case, in which the military force of the State can be properly exerted ag^{st} its Citizens. In one point of view he was struck with horror at the prospect of recurring to this expedient. To punish the non-payment of taxes with death, was a severity not yet adopted by despotism itself: yet this unexampled cruelty would be mercy compared to a military collection of revenue, in which the bayonet could make no discrimination between the innocent and the guilty. He took this occasion to repeat, that notwithstanding his solicitude to establish a national Government, he never would agree to abolish the State Gov^{ts} or render them absolutely insignificant. They were as necessary as the Gen^l Gov^t and he would be equally careful to preserve them. He was aware of the difficulty of drawing the line between them, but hoped it was not insurmountable. The Convention, tho' comprising so many distinguished characters, could not be expected to make a faultless Gov^t. And he would prefer trusting to Posterity the amendment of its defects, rather than to push the experiment too far.

M^r Luther Martin agreed with (Col Mason) as to the importance of the State Gov^{ts} he would support them at the expence of the Gen^l Gov^t which was instituted for the purpose of that support. He saw no necessity for two branches, and if it existed Congress might be organized into two. He considered Cong^s as representing the people, being chosen by the Legislatures who were chosen by the people. At any rate, Congress represented the Legislatures; and it was the Legislatures not the people who refused to enlarge their powers. Nor could the rule of voting have been the ground of objection, otherwise ten of the States must always have been ready, to place further confidence in Cong^s. The causes of repugnance must therefore be looked for elsewhere.--At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one: to these they look up for the security of their lives, liberties & properties: to these they must look up. The federal Gov^t they formed, to defend the whole ag^{st} foreign nations, in case of war, and to defend the lesser States ag^{st} the ambition of the larger: they are afraid of granting power unnecessarily, lest they should defeat the original end of the Union; lest the powers should prove dangerous to the sovereignties of the particular States which the Union was meant to support; and expose the lesser to being swallowed up by the larger. He conceived also that the people of the States having already vested their powers in their respective Legislatures, could not resume them without a dissolution of their Governments. He was ag^{st} Conventions in the States: was not ag^{st} assisting States ag^{st} rebellious subjects; thought the _federal_ plan of M^r Patterson did not require coercion more than the _National one_, as the latter must depend for the deficiency of its revenues on requisitions & quotas, and that a national Judiciary extended into the States would be ineffectual, and would be viewed with a jealousy inconsistent with its usefulness.

M^r Sherman 2^{ded} & supported M^r Lansings motion. He admitted two branches to be necessary in the State Legislatures, but saw no necessity for them in a Confederacy of States. The examples were all, of a single Council. Cong^s carried us thro' the war, and perhaps as well as any Gov^t could have done. The complaints at present are not that the views of Cong^s are unwise or unfaithful; but that their powers are insufficient for the execution of their views. The national debt & the want of power somewhere to draw forth the National resources, are the great matters that press. All the States were sensible of the defect of power in Cong^s. He thought much might be said in apology for the failure of the State Legislatures to comply with the Confederation. They were afraid of leaning too hard on the people, by accumulating taxes; no _constitutional_ rule had been or could be observed in the quotas--the Accounts also were unsettled & every State supposed itself in advance, rather than in arrears. For want of a general system, taxes to a due amount had not been drawn from trade which was the most convenient resource. As almost all the States had agreed to the recommendation of Cong^s on the subject of an impost, it appeared clearly that they were willing to trust Cong^s with power to draw a revenue from Trade. There is no weight therefore in the argument drawn from a distrust of Cong^s for money matters being the most important of all, if the people will trust them with power as to them, they will trust them with any other necessary powers. Cong^s indeed by the confederation have in fact the right of saying how much the people shall pay, and to what purpose it shall be applied: and this right was granted to them in the expectation that it would in all cases have its effect. If another branch were to be added to Cong^s to be chosen by the people, it would serve to embarrass. The people would not much interest themselves in the elections, a few designing men in the large districts would carry their points, and the people would have no more confidence in their new representatives than in Cong^s. He saw no reason why the State Legislatures should be unfriendly as had been suggested, to Cong^s. If they appoint Cong^s and approve of their measures, they would be rather favourable and partial to them. The disparity of the States in point of size he perceived was the main difficulty. But the large States had not yet suffered from the equality of votes enjoyed by the small ones. In all great and general points, the interests of all the States were the same. The State of Virg^a notwithstanding the equality of votes, ratified the Confederation without, or even proposing, any alteration. Mass^{ts} also ratified without any material difficulty &c. In none of the ratifications is the want of two branches noticed or complained of. To consolidate the States as some had proposed would dissolve our Treaties with foreign Nations, which had been formed with us, as _Confederated_ States. He did not however suppose that the creation of two branches in the Legislature would have such an effect. If the difficulty on the subject of representation can not be otherwise got over, he would agree to have two branches, and a proportional representation in one of them, provided each State had an equal voice in the other. This was necessary to secure the rights of the lesser States; otherwise three or four of the large States would rule the others as they please. Each State like each individual had its peculiar habits usages and manners, which constituted its happiness. It would not therefore give to others a power over this happiness, any more than an individual would do, when he could avoid it.

M^r Wilson. urged the necessity of two branches; observed that if a proper model were not to be found in other Confederacies it was not to be wondered at. The number of them was small & the duration of some at least short. The Amphyctionic and Achæan were formed in the infancy of political Science; and appear by their History & fate, to have contained radical defects. The Swiss & Belgic Confederacies were held together not by any vital principle of energy but by the incumbent pressure of formidable neighbouring nations: The German owed its continuance to the influence of the H. of Austria. He appealed to our own experience for the defects of our Confederacy. He had been 6 years in the 12 since the commencement of the Revolution, a member of Congress, and had felt all its weaknesses. He appealed to the recollection of others whether on many important occasions, the public interest had not been obstructed by the small members of the Union. The success of the Revolution was owing to other causes, than the Constitution of Congress. In many instances it went on even ag^{st} the difficulties arising from Cong^s themselves. He admitted that the large States did accede as had been stated, to the Confederation in its present form. But it was the effect of necessity not of choice. There are other instances of their yielding from the same motive to the unreasonable measures of the small States. The situation of things is now a little altered. He insisted that a jealousy would exist between the State Legislatures & the General Legislature: observing that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Gen^l or State Legislatures, provided it be exercised most for his happiness. His representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl: with the eye of a jealous rival. He observed that the addresses of Cong^s to the people at large, had always been better received & produced greater effect, than those made to the Legislatures.

On the question for postponing in order to take up M^r Lansing's proposition "to vest the powers of legislation in Cong^s"

Mass^{ts} no. Con^t ay. N. Y. ay. N. J. ay. P^a no. Del. ay.
M^d div^d. V^a no. N. C. no. S. C. no. Geo. no.

On motion of the Deputies from Delaware, the question on the 2^d Resolution in the Report from the Committee of the whole was postponed till tomorrow.

Adj^d.

THURSDAY JUNE 21. IN CONVENTION.

M^r Jonathan Dayton from N. Jersey took his seat.[94]

[94] From June 21 to July 18 inclusive not copied by M^r
Eppes.--Madison's Note. This applies evidently to notes he
permitted Hon. George W. Eppes, Jefferson's son-in-law, to
take.

Doc^r Johnson.[95] On a comparison of the two plans which had been proposed from Virginia & N. Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from V^a did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Col. Hamilton) in his animadversions on the plan of N. Jersey, boldly and decisively contended for an abolition of the State Gov^{ts}. M^r Wilson & the gentleman from Virg^a who also were adversaries of the plan of N. Jersey held a different language. They wished to leave the States in possession of a considerable, tho' a subordinate jurisdiction. They had not yet however shewn how this c^d consist with, or be secured ag^{st} the general sovereignty & jurisdiction, which they proposed to give to the National Government. If this could be shewn in such a manner as to satisfy the patrons of the N. Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt be removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as was proposed, sh^d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Gen^l Gov^t, without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils.

[95] "D^r Johnson is a character much celebrated for his
legal knowledge; he is said to be one of the first classics
in America, and certainly possesses a very strong and
enlightened understanding.

"As an Orator in my opinion, there is nothing in him that
warrants the high reputation which he has for public
speaking. There is something in the tone of his voice not
pleasing to the Ear,--but he is eloquent and clear,--always
abounding with information and instruction. He was once
employed as an Agent for the State of Connecticut to state
her claims to certain landed territory before the British
House of Commons; this Office he discharged with so much
dignity, and made such an ingenious display of his powers,
that he laid the foundation of a reputation which will
probably last much longer than his own life. D^r Johnson is
about sixty years of age, possesses the manners of a
Gentleman, and engages the Hearts of Men by the sweetness of
his temper, and that affectionate style of address with
which he accosts his acquaintance."--Pierce's Notes, _Am.
Hist. Rev._, iii., 326.

M^r Wilson's respect for Doc^r Johnson, added to the importance of the subject led him to attempt, unprepared as he was, to solve the difficulty which had been started. It was asked how the Gen^l Gov^t and individuality of the particular States could be reconciled to each other; and how the latter could be secured ag^{st} the former? Might it not, on the other side be asked how the former was to be secured ag^{st} the latter? It was generally admitted that a jealousy & rivalship would be felt between the Gen^l & particular Gov^{ts}. As the plan now stood, tho' indeed contrary to his opinion, one branch of the Gen^l Gov^t (the Senate or second branch) was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the Gen^l Gov^t would have an opportunity of defending their rights. Ought not a reciprocal opportunity to be given to the Gen^l Gov^t of defending itself by having an appointment of some one constituent branch of the State Gov^{ts}. If a security be necessary on one side, it w^d seem reasonable to demand it on the other. But taking the matter in a more general view, he saw no danger to the States from the Gen^l Gov^t. In case a combination should be made by the large ones it w^d produce a general alarm among the rest; and the project w^d be frustrated. But there was no temptation to such a project. The States having in general a similar interest, in case of any propositions in the National Legislature to encroach on the State Legislatures, he conceived a general alarm w^d take place in the National Legislature itself, that it would communicate itself to the State Legislatures, and w^d finally spread among the people at large. The Gen^l Gov^t will be as ready to preserve the rights of the States as the latter are to preserve the rights of individuals; all the members of the former, having a common interest, as representatives of all the people of the latter, to leave the State Gov^{ts} in possession of what the people wish them to retain. He could not discover, therefore any danger whatever on the side from which it was apprehended. On the contrary, he conceived that in spite of every precaution the General Gov^t would be in perpetual danger of encroachments from the State Gov^{ts}.