The Virginia Plan
The Federal Convention plunged into its momentous assignment without great delay chiefly because a prepared outline for a new government was ready for the delegates’ consideration—the so-called Virginia Plan. JM never claimed to be the author of this plan, but his guiding influence in the Virginia caucus, which drafted the resolutions, is beyond dispute. Some weeks before the delegates assembled at Philadelphia, JM had sketched the main features of the plan in letters to Jefferson, Randolph, and Washington (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 318–19, 369–71, 383–85). JM later recalled that the task of introducing the resolutions to the convention fell to Edmund Randolph, “being then the Governor of the State, of distinguished talents, and in the habit of public speaking. Genl. Washington, tho’ at the head of the list was, for obvious reasons disinclined to take the lead. It was also foreseen that he would be immediately called to the presiding station” (JM to John Tyler, [March?] 1833, Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , III, 525). Although Randolph submitted the fifteen resolutions “in writing,” the original draft has not been found and may have been among “all the loose scraps of paper” Secretary William Jackson burned (ibid., I, 16 and n. 3; Jackson to Washington, 17 Sept. 1787, ibid., III, 82).
The text below is from the copy in JM’s Notes on Debates, which the editors believe to be an accurate transcription of the original resolutions despite the doubts raised more than seventy years ago by J. Franklin Jameson. Jameson argued that none of the copies then existing was “the exact text of the original” and concluded that “the exact form of those resolutions can be recovered only by inference, and in one or two particulars remains uncertain” (“Studies in the History of the Federal Convention of 1787,” Annual Report of the American Historical Association for the Year 1902 [2 vols.; Washington, 1903], I, 103–11). This conclusion was supported by Homer C. Hockett (The Critical Method in Historical Research and Writing [New York, 1955], pp. 35–39) and disputed by Max Farrand, who maintained that JM’s was “an accurate copy of the original” (Records, III, 593–94). In comparing manuscript copies of the Virginia Plan, Farrand noted that they were alike in all significant details. But he failed to give complete information concerning the number and location of the extant copies, and he did not distinguish between the working copies (actually used by the delegates in the convention) and fair copies possibly made at a later time. Jameson and Hockett, on the other hand, relied almost entirely on printed texts, and thus failed to avoid the pitfalls that occur when pertinent manuscript evidence is overlooked.
Of the fifteen resolutions in the Virginia Plan, Jameson cast doubt on the wording of only two clauses of the ninth resolution. JM’s copy reads: “Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature.… That the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all Piracies & felonies on the high seas.…” According to Jameson, certain phrases of these clauses were not in the original resolution, but were added by the Committee of the Whole on 4 and 12 June. On 4 June, as recorded in the Journal, the committee agreed to a motion “to add these words to the first clause of the ninth resolution namely ‘to consist of One supreme tribunal, and of one or more inferior tribunals[’]” (ibid., I, 95). Although he noted that this wording is slightly different from the clause in JM’s text (e.g., the transposition of “one or more”), Jameson assumed that JM’s was a garbled version of the motion agreed to on 4 June. He thus denied that the original resolution included a distinction between supreme and inferior courts. That such a distinction existed in the original resolution, however, is indicated by William Paterson’s notes for 29 May, a source evidently unknown to Jameson at the time (ibid., I, 28). Thus the motion of 4 June might well have been intended merely to change the wording of the original clause to make it consistent with the remainder of the resolution. As it reads in JM’s text the ninth resolution is carelessly worded, referring to “one or more supreme tribunals” in the first clause, but to one supreme tribunal in the last.
Jameson also called attention to the motion of 12 June “to alter the resolution submitted by Mr Randolph, so as to read as follows namely. ‘That the jurisdiction of the supreme Tribunal shall be to hear and determine in the dernier resort all piracies, felonies &ca.’” (ibid., I, 211). He cited this motion as proof that the first mention of the jurisdiction of the supreme tribunal did not occur until 12 June. He assumed that the motion of that day was the result of the action of 4 June, when, so he argued, the Committee of the Whole first divided the judiciary into supreme and inferior courts. Yet Jameson did not explain how the reference to the jurisdiction of the inferior courts had crept into JM’s text. It obviously did not come from the motion of 12 June. A simpler explanation is that the intent of the latter motion was to delete that part of the original resolution defining the jurisdiction of the inferior courts. This action was necessary, for on 5 June the committee had eliminated the constitutional provision for inferior tribunals (ibid., I, 118).
Jameson’s argument rests on what Farrand called “the somewhat doubtful authority of the Journal.” Even if the Journal is correct, however, Jameson’s is not the only plausible explanation of the motions of 4 and 12 June. Paterson’s notes contain evidence supporting the accuracy of JM’s version of the ninth resolution. More important evidence is to be found in the surviving manuscript copies of the Virginia Plan, each of which incorporates into the text the disputed phrases of the ninth resolution. The existence of several of these copies was doubtless unknown to Jameson at the time he wrote his article, but there is at least one he could have consulted. Instead he used two printed versions that led him astray.
The extant manuscript copies of the Virginia Plan may be divided into two groups: fair copies and working copies. We can assume that the fair copies were made at a later time (although some of them could well have been made at the time the resolutions were first submitted). The working copies, containing deletions, interlineations, and marginalia, were prepared and used by the delegates as the resolutions progressed through the Committee of the Whole. These copies have the greater authority because they are closer to the original. The copy in JM’s Notes on Debates of course belongs to the first group, but from our knowledge of the Virginian’s conscientious effort to preserve a full record of the convention, it is difficult to believe that he did not have an accurate text from which to make this copy. The other fair copies are those of George Washington (DLC: Washington Papers), James McHenry (DLC: McHenry Papers), Charles Cotesworth Pinckney (DLC: Pinckney Family Papers), and William Paterson (DLC: Paterson Papers, photostat). The working copies are those of William Paterson (DLC: William Samuel Johnson Papers), David Brearley (DNA: RG 360, Records of the Constitutional Convention of 1787, microfilm M866), and John Lansing (Strayer, Delegate from N.Y. description begins Joseph R. Strayer, ed., The Delegate from New York or Proceedings of the Federal Convention … from the Notes of John Lansing, Jr. (Princeton, 1939). description ends , pp. 113–18). The copy of Jacob Broom, with a few interlineations in the hand of John Dickinson, does not clearly fall into either group (PPL: John Dickinson Papers).
By examining the working copies it is possible to distinguish the original text from the later alterations. In each of them there is no doubt that the disputed parts of the ninth resolution belong to the original text and are not later insertions. The Brearley and Lansing texts do embody a few phrases that were not added until after 29 May. The marginal insertions on the former, however, indicate that Brearley made his copy no later than 1 June. Lansing did not arrive until 2 June and presumably made his copy that day (Strayer, Delegate from N.Y. description begins Joseph R. Strayer, ed., The Delegate from New York or Proceedings of the Federal Convention … from the Notes of John Lansing, Jr. (Princeton, 1939). description ends , p. 14). Their versions of the ninth resolution, which first came under discussion on 4 June, should therefore still be considered accurate texts of the original. Paterson’s working copy needs no such qualification.
The only manuscript Jameson examined was Paterson’s fair copy, which the New Jersey delegate included in a notebook containing copies of other documents of the convention. Because this text incorporates later changes, Jameson correctly rejected it as a copy representing the original. Evidently he was unaware of the existence of Paterson’s earlier working copy. What is more difficult to explain is why he failed to look at the Brearley manuscript, which has been in the public archives since 1818. This manuscript was the source of two printed texts discussed by Jameson, one printed in the official Journal of 1819, pp. 67–70, the other in Documentary History of the Constitution, I, 329–32. In the former the text of the first clause of the ninth resolution omits not only what Brearley deleted, but also some of what remained. The result is confusing: the first clause does not mention supreme and inferior courts, but the last clause defines the jurisdiction of these hitherto unmentioned tribunals. Jameson noted this inconsistency and concluded not that something was missing from the first clause, but that the last clause contained too much. The latter text follows the Brearley manuscript as corrected by him, incorporating his later insertions and deletions. The important fact is that both printed versions seriously distort the original manuscript. Jameson correctly stated that Brearley’s text of the Virginia Plan, as printed in Documentary History of the Constitution, “represents the original, plus most of the modifications made up to about June 11 or 12.” If he had inspected the manuscript, Jameson could have easily distinguished the original from the later modifications. Thus he overlooked a valuable aid to the restoration of the original text of the Virginia Plan.
Resolutions proposed by Mr. Randolph in Convention
May 29, 1787
1. Resolved that the Articles of Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution; namely, “common defence, security of liberty and general welfare.”
2. Resd. therefore that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases.
3. Resd. that the National Legislature ought to consist of two branches.
4. Resd. that the members of the first branch of the national Legislature ought to be elected by the people of the several States every for the term of ; to be of the age of years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those beculiarly [sic] belonging to the functions of the first branch, during the term of service, and for the space of after its expiration; to be incapable of re-election for the space of after the expiration of their term of service, and to be subject to recall.
5. Resold. that the members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures, to be of the age of years at least; to hold their offices for a term sufficient to ensure their independency; to receive liberal stipends, by which they may be compensated for the devotion of their time to public service; and 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 for the space of after the expiration thereof.
6. Resolved that each branch ought to possess the right of originating Acts; that the national Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & 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;1 and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.2
7. Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of years, to receive punctually at stated times a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.
8. Resd. that the Executive and a Convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.3
9. Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of4 inferior tribunals to be chosen by the National Legislature,5 to hold their offices during good behaviour; and to receive punctually at stated times 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. That the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal6 to hear and determine in the dernier resort, all Piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any national officers, and questions which may involve the national peace and harmony.7
10. Resolvd. 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 & Territory or otherwise, with the consent of a number of voices in the National legislature less than the whole.
11. Resd. that a Republican Government & the territory of each State, except in the instance of a voluntary junction of Government & territory, ought to be guaranteed by the United States to each State.
12. Resd. that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day after the reform of the articles of Union shall be adopted, and for the completion of all their engagements.
13. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.
14. Resd. that the Legislative Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.
15. Resd. 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 & decide thereon.
1. JM preferred a negative “in all cases whatsoever” (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 318). On 8 June he supported Charles Pinckney’s motion for an unlimited veto over state laws. The vote on this unsuccessful motion indicates that Randolph and Mason were responsible for the milder version of the veto provided for in the sixth resolution (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 168).
2. See fourth speech of 31 May 1787 and n. 1.
3. The idea for a “Council of revision” was borrowed from the New York Constitution of 1777. A proposal to create such a council had been discussed in the Virginia legislature in 1782, and Jefferson included a provision for one in his 1783 draft of a constitution for Virginia (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , V, 218; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950——). description ends , VI, 302–3). See also JM to Caleb Wallace, 23 Aug. 1785, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , VIII, 351–52.
4. A blank space appears at this point in Brearley’s working copy and also in Paterson’s fair copy.
5. JM acceded to, rather than approved, this provision, as his remarks on 5 June (first speech) indicated. He preferred that judges be elected by the “Senatorial branch.”
6. McHenry’s copy has “tribunals.” All others have the singular form.
7. For a discussion of the correct text of the ninth resolution, see the Editorial Note above.