|Notes on the Debates in the Federal Convention
By James Madison
June 19, 1787
Tuesday June 19, 1787
IN COMMITTEE OF WHOLE ON THE PROPOSITIONS OF MR. PATTERSON
The substitute offered yesterday by Mr. Dickenson being rejected by a vote now taken on it; Connecticut, New York, New
Jersey, Delaware, ay. Massachusetts, Pennsylvania, Vermont, North Carolina, South Carolina, Georgia, no. Maryland, divided.
Mr. PATTERSON's plan was again at large before the Committee.
Mr. MADISON. Much stress had 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, etc., the
existing Confederacy, and in many instances, the amendments to it proposed by Mr. Patterson, must operate immediately on
The other characteristic was that a federal Govternment 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, Connecticut and
Rhode Island, the delegates to Congress were chosen, not by the Legislatures, but by the people at large; and the plan of Mr.
Patterson intended no change in this particular.
It had been alleged [by Mr. 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 analogous 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 can not 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 shows that we are not to consider the federal Union as analogous 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 Gentleman from New Jersey would be among the last to admit. If we consider the federal Union as
analogous 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 compel an offending member of the Union to discharge its duty. He observed that the
violations of the federal articles had been numerous and notorious. Among the most notorious was an act of New Jersey
herself, by which she expressly refused to comply with a constitutional requisition of Congress 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 Government that will remedy the evils felt by the States both in their united and individual
capacities. Examine Mr. Patterson’s plan, and say whether it promises satisfaction in these respects.
1. Will it prevent those violations of the law of nations and 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 Congress
contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been
shown to us. This can not 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 uncontrolled as ever.
2. Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently
exemplified, among ourselves, as well in every other confederated republic ancient and Modern. By the federal articles,
transactions with the Indians appertain to Congress. Yet in several instances, the States have entered into treaties and wars
with them. In like manner no two or more States can form among themselves any treaties, etc., without the consent of
Congress. Yet Virginia and Maryland in one instance, Pennsylvania and New 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 Massachusetts,
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 Congress of Her intention? In fine -Have we not seen the public land dealt out to
Connecticut to bribe her acquiescence in the decree constitutionally awarded against her claim on the territory of
Pennsylvania? for no other possible motive can account for the policy of Congress 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 and Achaean confederacies among the ancients, and the
Helvetica, Germanic and Belgiumic among the moderns, tracing their analogy to the United 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 and ruin on the whole. He observed that the plan of Mr. Patterson besides omitting a control over the States as a
general defense of the federal prerogatives was particularly defective in several 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
Congress 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 could 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
pardoning. How could this be taken from them by a legislative ratification only?
3. Will it prevent trespasses of the States on each other? Of this, enough has been already seen. He instanced Acts of Virginia
and Maryland which give 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 and 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 this 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 against each other.
4. Will it secure the internal tranquility of the States themselves? The insurrections in Massachusetts admonished all the States
of the danger to which they were exposed. Yet the plan of Mr. Patterson contained no provisions for supplying the defect of
the Confederation on this point. According to the Republican theory indeed, Right and power being both vested in the
majority, are held to be synonymous. According to fact and 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 and 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,
and who for obvious reasons may be more ready to join the standard of sedition than that of the established Government. (3)
Where slavery exists, the Republican Theory becomes still more fallacious.
5. Will it secure a good internal legislation and administration to the particular States? In developing the evils which vitiate the
political system of the United States, 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.
6. Will it secure the Union against 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 practiced among the Amphyctionic Confederates first by the Kings of Persia, and
afterwards fatally by Philip of Macedon; among the Achaeans, first by Macedon and afterwards no less fatally by Rome;
among the Swiss by Austria, France & the lesser neighboring powers; among the members of the Germanic Body by France,
England, Spain & Russia; and in the Belgium Republic, by all the great neighboring 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.
7. 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 expense of maintaining their Delegates in Congress. It
ought not to be said that if they were willing to bear this burden, 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 Congress 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
Congress. 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 and
Resident of Pennsylvania and held an office in his own State incompatible with an appointment from it to Congress. During
another period, the same State was represented by three delegates two of whom were citizens of Pennsylvania 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 the cause, was not in effect the vote of one State doubled, and the influence of another
increased by it?
In the second 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 which 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 and sovereign, or two or more Confederacies must be formed among them. In the first event would the small
States be more secure against the ambition and power of their larger neighbors 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
against every other part? In the second, can the smaller expect that their larger neighbors 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?
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 New Jersey [Mr. Brearly and Mr. Patterson] that it would not be just to allow Virginia
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 Virginia 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
It had been found impossible for the power of one of the most absolute princes in Europe [King 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 and 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 neighbors, be less inconvenient to the whole
community, and equally effectual for their own safety. If New 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 neighbors, 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 should be entitled to vote according to their
proportions of inhabitants, all would be right and safe. Let them have an equal vote, and a more objectionable minority than
ever might give law to the whole.
On a question for postponing generally the first proposition of Mr. Patterson's plan, it was agreed to: New York and New
Jersey only, being no.
On the question moved by Mr. King whether the Committee should rise and Mr. Randolph’s propositions be re-reported
without alteration, which was in fact a question whether Mr. Randolph's should be adhered to as preferable to those of Mr.
Massachusetts, aye. Connecticut, aye. New York, no. New Jersey, no. Pennsylvania, aye. Delaware, no. Maryland, divided.
Virginia, aye. North Carolina, aye. South Carolina, aye. Georgia, aye.
[State of the resolutions submitted to the consideration of the House by the honorable Mr. Randolph, as altered,
amended, and agreed to, in a Committee of the whole House.]
1. Resolved. That it is the opinion of this Committee that a national government ought to be established consisting of a
Supreme Legislative, Judiciary, and Executive.
2. Resolved. That the national Legislature ought to consist of Two Branches.
3 Resolved. That the members of the first branch of the national Legislature ought to be elected by the People of the several
States for the term of Three years. to receive fixed stipends, by which they may be compensated for the devotion of their
time to public service to be paid out of the National Treasury; to be ineligible to any Office established by a particular State or
under the authority of the United States (except those peculiarly belonging to the functions of the first branch) during the
term of service, and under the national government for the space of one year after it's expiration.
4 Resolved. That the members of the second Branch of the national Legislature ought to be chosen by the individual
Legislatures to be of the age of thirty years at least. to hold their offices for a term sufficient to ensure their independency,
namely seven years. to receive fixed stipends, by which they may be compensated for the devotion of their time to public
service to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the
authority of the United States (except those peculiarly belonging to the functions of the second branch) during the term of
service, and under the national government, for the space of one year after it's expiration.
5. Resolved. That each branch ought to possess the right of originating acts.
6. Resolved. That the national Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the
confederation, and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of
the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States
contravening, in the opinion of the national Legislature, the articles of union, or any treaties subsisting under the authority of
7. Resolved. That the right of suffrage in the first branch of the national Legislature ought not to be according to the rule
established in the articles of confederation, but according to some equitable ratio of representation; namely, in proportion to
the whole number of white and other free citizens and inhabitants of every age, sex, and condition including those bound to
servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except
Indians, not paying taxes in each State.
8. Resolved. That the right of suffrage in the second branch of the national Legislature ought to be according to the rule
established for the first.
9. Resolved. That a national Executive be instituted to consist of a single person, to be chosen by the National Legislature for
the term of seven years, with power to carry into execution the national Laws, to appoint to Offices in cases not otherwise
provided for to be ineligible a second time, and to be removable on impeachment and conviction of mal- practice or neglect of
duty; to receive a fixed stipend, by which he may be compensated for the devotion of his time to public service to be paid out
of the national Treasury.
10. Resolved. That the national executive shall have a right to negative any legislative act which shall not be afterwards passed
unless by two third parts of each branch of the national Legislature.
11. Resolved. That a national Judiciary be established to consist of One Supreme Tribunal. The Judges of which to be
appointed by the second Branch of the National Legislature; to hold their offices during good behavior; to receive, punctually,
at stated times, a fixed compensation for their services in which no increase or diminution shall be made so as to affect the
persons actually in office at the time of such increase or diminution.
12. Resolved. That the national Legislature be empowered to appoint inferior Tribunals.
13. Resolved. That the jurisdiction of the national Judiciary shall extend to cases which respect the collection of the national
revenue; impeachments of any national officers; and questions which involve the national peace and harmony.
14. Resolved. That provision ought to be made for the admission of States, lawfully arising within the limits of the United
States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices
in the national Legislature less than the whole.
15. Resolved. That provision ought to be made for the continuance of Congress and their authorities until a given day after the
reform of the articles of Union shall be adopted; and for the completion of all their engagements.
16. Resolved. That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States.
17. Resolved. That provision ought to be made for the amendment of the articles of Union, whensoever it shall seem
18. Resolved. That the Legislative, Executive, and Judiciary powers within the several States ought to be bound by oath to
support the articles of Union.
19. Resolved. That the amendments which shall be offered to the confederation by the Convention, ought at a proper time or
times, after the approbation of Congress to be submitted to an assembly or assemblies of representatives, recommended by
the several Legislatures, to be expressly chosen by the People to consider and decide thereon.
(Of Mr. Randolph's plan as reported from the Committee) the one proposition, "that a National Government ought to be
established consisting, etc.," being taken up in the House.
Mr. WILSON observed that by a National Government, he did not mean one that would swallow up the State Governments
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 and subdivisions of England by
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 and State Legislatures; that the former
must therefore have indefinite authority. If it were limited at all, the rivalry of the States would gradually subvert it. Even as
Corporations the extent of some of them as Virginia Massachusetts, etc., 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 against the
phraseology of it. He conceived that the import of the terms "States", "Sovereignty", "national", and "federal", had been often
used and applied in the discussions inaccurately and 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 foreign Sovereign whatever.
They were deaf, for they could not hear any propositions from such Sovereign. They had not even the organs or faculties of
defense 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. Congress
can act alone without the States; they can act and their acts will be binding against 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 and propose any alterations that Congress could have done under the
federal articles, and could not Congress 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. Mr. MARTIN said he considered
that the separation from Great Britain 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 Virginia, Massachusetts and Pennsylvania.
Mr. WILSON, could not admit the doctrine that when the Colonies became independent of Great 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 and independent States, and inferring that they were independent, not individually but United, 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 Government in which they might lose the equality of rank they
now held: one was the local situation of the 3 largest States Virginia, Massachusetts, and Pennsylvania. 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
Virginia, the largest down to Delaware the smallest, it would always happen that ambitious combinations among a few States
might and would be counteracted by defensive combinations of greater extent among the rest. No combination has been seen
among large Counties merely as such, against lesser Counties. The more close the Union of the States, and the more complete
the authority of the whole, the less opportunity will be allowed the stronger States to injure the weaker.
|The Illinois Conservative