Reply to the New Jersey Plan
[19 June 1787]
On 13 June the Committee of the Whole reported to the convention the amended Virginia Plan. Consideration of that report was postponed on 14 June at the request of Paterson in order that the small states might have time to prepare a plan “purely federal, and contradistinguished from the reported plan” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 240). Paterson introduced the New Jersey Plan the next day. Yates’s notes leave the impression that JM was trying to block consideration of the small states’ proposals by moving “for the report of the committee [the Virginia Plan], and the question may then come on whether the convention will postpone it in order to take into consideration the system now offered.” However, according to the Journal and Lansing, JM only moved to commit Paterson’s resolutions to the Committee of the Whole (ibid., I, 246, 241; 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. 52). The convention agreed to consider the New Jersey Plan and the amended Virginia Plan in the Committee of the Whole “in order to place the two plans in due comparison” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 242). The next three days of debate were taken up with extensive discussion of the two proposals. After JM’s speech, the New Jersey Plan was rejected in favor of the amended Virginia Plan.
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 &c. the existing Confederacy, and in many instances, the amendments to it proposed by Mr. Patterson, must operate immediately on individuals. The other characteristic was that a federal Govt. 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. and Rh. Island, the delegates to Congs. were chosen, not by the Legislatures, but by the people at large; and the plan of Mr. P. intended no change in this particular.1
It had been alledged (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 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 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 Gentn: from N. 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 compell an offending member of the Union to discharge its duty. He observed that the violations of the federal articles had been numerous & notorious. Among the most notorious was an act of N. Jersey herself; by which she expressly refused to comply with a constitutional requisition of Congs.—and yielded no farther to the expostulations of their deputies, than barely to rescind her vote of refusal without passing any positive act of compliance.2 He did not wish to draw any rigid inferences from these observations. He thought it proper however that the true nature of the existing confederacy should be investigated, and he was not anxious to strengthen the foundations on which it now stands.
Proceeding to the consideration of Mr. Patterson’s plan, he stated the object of a proper plan to be twofold. 1. to preserve the Union. 2. to provide a Governmt. that will remedy the evils felt by the States both in their united and individual capacities. Examine Mr. P.s plan, & say whether it promises satisfaction in these respects.
1. Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars?3 The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrouled as ever.
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 antient and Modern. By the federal articles, transactions with the Indians appertain to Congs. Yet in several instances, the States4 have entered into treaties & wars with them. In like manner no two or more States can form among themselves any treaties &[c]. without the consent of Congs. Yet Virga. & Maryd. in one instance—Pena. & N. Jersey in another, have entered into compacts, without previous application or subsequent apology. No State again can of right raise troops in time of peace without the like consent. Of all cases of the league, this seems to require the most scrupulous observance. Has not Massts, notwithstanding, the most powerful member of the Union, already raised a body of troops? Is she not now augmenting them, without having even deigned to apprize Congs. of Her intention? In fine have we not seen the public land dealt out to Cont. to bribe her acquiescence in the decree constitutionally awarded agst. her claim on the territory of Pena.? For no other possible motive can account for the policy of Congs. in that measure?5 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 intent6 of their federal authorities—in the tendency of the particular members to usurp on these authorities; and to bring confusion & ruin on the whole.7 He observed that the plan of Mr. Pat——son besides omitting a controul over the States as a general defence of the federal prerogatives8 was particularly defective in two of its provisions. 1. Its ratification was not to be by the people at large, but by the legislatures. It could not therefore render the Acts of Congs. in pursuance of their powers, even legally paramount to the Acts of the States. 2. It gave to the federal Tribunal an appellate jurisdiction only—even in the criminal cases enumerated. The necessity of any such provision supposed a danger of undue acquittals in the State tribunals. Of what avail cd. an appellate tribunal be, after an acquittal? Besides in most if not all of the States, the Executives have by their respective Constitutions the right of pardg. How could this be taken from them by a legislative ratification only?
3. Will it prevent trespasses of the States on each other? Of these enough has been already seen. He instanced Acts of Virga. & 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 & other kindred measures as also aggressions. The States relatively to one another being each of them either Debtors 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. Patterson, not giving even a negative on the Acts of the States, left them as much at liberty as ever to execute their unrighteous projects agst. each other.
4. Will it secure the internal tranquility of the States themselves? The insurrections in Massts. admonished all the States of the danger to which they were exposed. Yet the plan of Mr. P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonimous. 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 third9 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 the 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 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 exigences of the Community.
6. Will it secure the Union agst. the influence of foreign powers over its members. He pretended not to say that any such influence had yet been 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 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. Pattersons 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 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 Congs. 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 Congs. During a considerable period of the War, one of the Representatives of Delaware, in whom alone before the signing of the Confederation the entire vote of that State and after that event one half of its vote, frequently resided, was a Citizen & Resident of Pena. and held an office in his own State incompatible with an appointment from it to Congs. During another period, the same State was represented by three delegates two of whom were citizens of Penna. and the third a Citizen of New Jersey.10 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 2d. place the coercion, on which the efficacy of the plan depends, can never be exerted but on themselves. The larger States will be impregnable, the smaller only can feel the vengeance of it. He illustrated the position by the history of the Amphyctionic Confederates: and the ban of the German Empire. It was the cobweb wch. could entangle the weak, but would be the sport of the strong.
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 agst. the ambition & power of their larger neighbours, than they would be under a general Government pervading with equal energy every part of the Empire, and having an equal interest in protecting every part agst. every other part? In the second, can the smaller expect that their larger neighbours would confederate with them on the principle of the present confederacy, which gives to each member, an equal suffrage; or that they would exact less severe concessions from the smaller States, than are proposed in the scheme of Mr. Randolph?
The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable. It was admitted by both the gentlemen from N. Jersey, (Mr. Brearly and Mr. Patterson) that it would not be just to allow Virga. which was 16 times as large as Delaware an equal vote only. Their language was that it would not be safe for Delaware to allow Virga. 16 times as many votes. The expedient proposed by them was that all the States should be thrown into one mass and a new partition be made into 13 equal parts. Would such a scheme be practicable? The dissimilarities existing in the rules of property, as well as in the manners, habits and prejudices of the different 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 (Mr. Neckar) that any age has produced, to equalize in some points only the different usages & regulations of the different provinces. But admitting a general amalgamation and repartition of the States, to be practicable, and the danger apprehended by the smaller States from a proportional representation to be real; would not a particular and voluntary coalition of these with their neighbours, be less inconvenient to the whole community, and equally effectual for their own safety. If N. Jersey or Delaware conceived that an advantage would accrue to them from an equalization of the States, in which case they would necessaryly form a junction with their neighbours, why might not this end be attained by leaving them at liberty by the Constitution to form such a junction whenever they pleased? And why should they wish to obtrude a like arrangement on all the States, when it was, to say the least, extremely difficult, would be obnoxious to many of the States, and when neither the inconveniency, nor the benefit of the expedient to themselves, would be lessened, by confining it to themselves. The prospect of many new States to the Westward was another consideration of importance. If they should come into the Union at all, they would come when they contained but few inhabitants. If they shd. be entitled to vote according 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.11
3. Beginning here and continuing through the fifth point in his enumeration, JM drew extensively from his Vices of the Political System (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 348–57).
4. JM originally wrote “in question Georgia”—then deleted it before Eppes copied the Debates. Yates’s, Lansing’s, and King’s versions of JM’s speech all contain this reference to Georgia.
6. JM may have meant to write “extent.”
7. See Notes on Ancient and Modern Confederacies, April–June? 1786, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 4–22.
8. Some time after Eppes copied the Debates JM interlined “besides … prerogatives.”
9. JM originally wrote “or less,” which he deleted before Eppes copied the Debates.
10. Thomas McKean was chief justice of Pennsylvania from 1777 to 1799 and represented Delaware in Congress from 1774 to 1783. McKean, Samuel Wharton, also of Pennsylvania, and Philemon Dickinson of New Jersey were elected delegates to Congress from Delaware in 1782 (Madison, Papers [Gilpin ed.] description begins Henry D. Gilpin, ed., The Papers of James Madison (3 vols.; Washington, 1840). description ends , Table of References, III, lx n. 215; John A. Munroe, “Nonresident Representation in the Continental Congress: The Delaware Delegation of 1782,” WMQ description begins William and Mary Quarterly. description ends , 3d ser., IX , 166–90).
11. Yates’s version:
“Mr. Madison.—This is an important question—Many persons scruple the powers of the convention. If this remark had any weight, it is equally applicable to the adoption of either plan. The difference of drawing the powers in the one from the people and in the other from the states, does not affect the powers. There are two states in the union where the members of congress are chosen by the people. A new government must be made. Our all is depending on it; and if we have but a clause that the people will adopt, there is then a chance for our preservation. Although all the states have assented to the confederation, an infraction of any one article by one of the states is a dissolution of the whole. This is the doctrine of the civil law on treaties.
“Jersey pointedly refused complying with a requisition of congress, and was guilty of this infraction, although she afterwards rescinded her non-complying resolve. What is the object of a confederation? It is two-fold—1st, to maintain the union; 2dly, good government. Will the Jersey plan secure these points? No; it is still in the power of the confederated states to violate treaties—Has not Georgia, in direct violation of the confederation made war with the Indians, and concluded treaties? Have not Virginia and Maryland entered into a partial compact? Have not Pennsylvania and Jersey regulated the bounds of the Delaware? Has not the state of Massachusetts, at this time, a considerable body of troops in pay? Has not congress been obliged to pass a conciliatory act in support of a decision of their federal court, between Connecticut and Pennsylvania, instead of having the power of carrying into effect the judgment of their own court? Nor does the Jersey plan provide for a ratification by the respective states of the powers intended to be vested. It is also defective in the establishment of the judiciary, granting only an appellate jurisdiction, without providing for a second trial; and in case the executive of a state should pardon an offender, how will it effect the definitive judgment on appeal? It is evident, if we do not radically depart from a federal plan, we shall share the fate of ancient and modern confederacies. The amphyctionic council, like the American congress, had the power of judging in the last resort in war and peace—call out forces—send ambassadors. What was its fate or continuance? Philip of Macedon, with little difficulty, destroyed every appearance of it. The Athenian had nearly the same fate—The Helvetic confederacy is rather a league—In the German confederacy the parts are too strong for the whole—The Dutch are in a most wretched situation—weak in all its parts, and only supported by surrounding contending powers.
“The rights of individuals are infringed by many of the state laws—such as issuing paper money, and instituting a mode to discharge debts differing from the form of the contract. Has the Jersey plan any checks to prevent the mischief? Does it in any instance secure internal tranquility? Right and force, in a system like this, are synonymous terms. When force is employed to support the system, and men obtain military habits, is there no danger they may turn their arms against their employers? Will the Jersey plan prevent foreign influence? Did not Persia and Macedon distract the councils of Greece by acts of corruption? And is not Jersey and Holland at this day subject to the same distractions? Will not the plan be burthensome to the smaller states, if they have an equal representation? But how is military coercion to enforce government? True, a smaller state may be brought to obedience, or crushed; but what if one of the larger states should prove disobedient, are you sure you can by force effect a submission? Suppose we cannot agree on any plan, what will be the condition of the smaller states? Will Delaware and Jersey be safe against Pennsylvania, or Rhode-Island against Massachusetts? And how will the smaller states be situated in case of partial confederacies? Will they not be obliged to make larger concessions to the greater states? The point of representation is the great point of difference, and which the greater states cannot give up; and although there was an equalization of states, state distinctions would still exist. But this is totally impracticable; and what would be the effect of the Jersey plan if ten or twelve new states were added?” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 325–27).
“Madison—The Distinction between fœderal and national Representation—the one from the State collectively—the other from the People is not well taken—There are two States in the Union in which Delegates are chosen by the People.
“Probability of adopting Plan—We must adopt such an one as will ensure Safety—Let us have a Chance. Confederation on same ground as Compact made by a Number of Persons—If one violates it all are discharged—in Treaties it is agreed that a Breach of any is a Dissolution of all—Jersey has refused to comply with Requisitions—He is anxious to perpetuate Union—but will not consent to prolong it on its present Principles. How is Confederation observed?
“Georgia has entered into War and made Treaties in express Violation of Union.
“Virginia and Maryland entered into Compact in like Violation. Massachusetts has a regular Body of Forces without Approbation of Congress.
“The conciliatory Resolution of Congress resp[ectin]g Wioming Dicision evinces Weakness of general Government.
“The Power retained by the different States Executives of pardoning would alone defeat national Government. The Amphictionic Council had a Right of judging between Members, mulcting Aggressors—drawing out Force of States—and several other important Powers—The Confederacy was however of very short Duration. It will not be denied that the Convention has as much Power as Congress—They have exercised it in recommending a new Rule of Apportionment—11 States agreed to it” (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. 68–69).
“Confedn. unanimously adopted can be dissolved only by unanimous consent—this Position is not true—A contract entered into by men or societies may be dissolved by the breach of a single Articles—this is the case in Treaties—sometimes however provision is made that the Breach of a single Article shall not dissolve the Contn. or Treaty
“Georgia has declared & prosecuted a war agt. the Indians—they have treated with them—N Jersey has expressly refused a constutitional Requisition—Virginia & Maryland have formed a Contract relative to the Potomack—Pennsylvania & NYk have agreed about their boundary—Massachussets has raised an Army, & are now about to augment that Establishment—
“Will a federal Govt. answer—
“Amphictions—to decide between the members—to mulct offenders—command the forces, sent Embass. chose the Comr. in Chief, and used the Genl. Forces agt. the deficient—
“Athenian confed. similar to the Amphictions—their fate terminated by the strength of the members
“Helvetic Confed. loose & weak and not like our situation—
“Loose & weak, the strength of individual Members exceed that of the whole—
“The Netherlands—weak—no powers” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 329–30).
|“Maddison||Breach of compact in one article releases the whole.|
|“Treaties may still be violated by the states under the Jersey plan.|
|“Appellate jurisdiction not sufficient because second trial cannot be had under it.|
|“Attempt made by one of the greatest monarchs of Europe to equalize the local peculiarities of their separate provinces—in which the Agent fell a victim” (Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (21 vols. to date; New York, 1961——). description ends , IV, 172).|