This Constitution shall be submitted to the consideration of
Conventions in the several States, the members whereof shall
be chosen by the people of such States respectively under
the direction of their respective Legislatures. Each
Convention which shall ratify the same, shall appoint the
first representatives and Senators from such State according
to the rule prescribed in the ---- § of the ---- article.
The representatives so appointed shall continue in office
for one year only. Each Convention so ratifying shall give
notice thereof to the Congress of the United States,
transmitting at the same time a list of the Representatives
and Senators chosen. When the Constitution shall have been
duly ratified, Congress shall give notice of a day and place
for the meeting of the Senators and Representatives from the
several States; and when these or a majority of them shall
have assembled according to such notice, they shall by joint
ballot, by plurality of votes, elect a President of the
United States; and the Constitution thus organized shall be
carried into effect.--_Mad. MSS._
"Col: Hamilton did not propose in the Convention any plan of
a Constitution. He had sketched an outline which he read as
part of a speech; observing that he did not mean it as a
proposition, but only to give a more correct view of his
ideas.
"Mr. Patterson regularly proposed a plan which was discussed
& voted on."--Madison to John Quincy Adams, Montpellier,
Nov. 2, 1818, _Dept. of State MSS._, Miscellaneous Letters.
Committee rose & the House Adjourned.
TUESDAY JUNE 19^{TH} IN COMMITTEE OF WHOLE ON
THE PROPOSITIONS OF M^R PATTERSON,--[90]
[90] This was the last session of the Convention in Committee of the
Whole.
The substitute offered yesterday by M^r Dickenson being rejected by a
vote now taken on it; Con. N. Y. N. J. Del. ay. Mass. P^a V. N. C. S. C.
Geo. no. Mary^d divided M^r Patterson's plan was again at large before
the Committee.
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.