Rule of Representation in the First Branch
of the Legislature
[28 June 1787]
Lansing moved for equal representation of the states in the first branch of the legislature.
Mr. Madison sd. he was much disposed to concur in any expedient not inconsistent with fundamental principles, that could remove the difficulty concerning the rule of representation. But he could neither be convinced that the rule contended for was just, nor necessary for the safety of the small States agst. the large States. That it was not just, had been conceded by Mr. Breerly & Mr. Patterson themselves. The expedient proposed by them was a new partition of the territory of the U. States. The fallacy of the reasoning drawn from the equality of Sovereign States in the formation of compacts, lay in confounding mere Treaties, in which were specified certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse, with a compact by which an authority was created paramount to the parties, & making laws for the government of them. If France, England & Spain were to enter into a Treaty for the regulation of commerce &c with the Prince of Monacho & 4 or 5 other of the smallest sovereigns of Europe, they would not hesitate to treat as equals, and to make the regulations perfectly reciprocal. Wd. the case be the same, if a Council were to be formed of deputies from each with authority and discretion, to raise money, levy troops, determine the value of coin &c? Would 30 or 40. million of people submit their fortunes into the hands, of a few thousands? If they did it would only prove that they expected more from the terror of their superior force, than they feared from the selfishness of their feeble associates. Why are Counties of the same states represented in proportion to their numbers? Is it because the representatives are chosen by the people themselves? So will be the representatives in the Nationl. Legislature. Is it because, the larger have more at stake than the smaller? The case will be the same with the larger & smaller States. Is it because the laws are to operate immediately on their persons & properties? The same is the case in some degree as the articles of confederation stand; the same will be the case in a far greater degree under the plan proposed to be substituted. In the cases of captures, of piracies, and of offences in a federal army, the property & persons of individuals depend on the laws of Congs. By the plan proposed a compleat power of taxation, the highest prerogative of supremacy is proposed to be vested in the national Govt. Many other powers are added which assimilate it to the Govt. of individual States. The negative proposed on the State laws, will make it an essential branch of the State Legislatures & of course will require that it should be exercised by a body established on like principles with the other branches of those Legislatures. That it is not necessay. to secure the small States agst. the large ones he conceived to be equally obvious: Was a combination of the large ones dreaded? This must arise either from some interest common to Va. Masts. & Pa. & distinguishing them from the other States or from the mere circumstance of similarity of size. Did any such common interest exist? In point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous State. In point of manners, Religion, and the other circumstances which sometimes beget affection between different communities, they were not more assimilated than the other States. In point of the staple productions they were as dissimilar as any three other States in the Union. The Staple of Masts. was fish, of Pa. flower, of Va. Tobo. Was a Combination to be apprehended from the mere circumstance of equality of size? Experience suggested no such danger. The journals of Congs. did not present any peculiar association of these States in the votes recorded. It had never been seen that different Counties in the same State, conformable in extent, but disagreeing in other circumstances, betrayed a propensity to such combinations. Experience rather taught a contrary lesson. Among individuals of superior eminence & weight in Society, rivalships were much more frequent than coalitions. Among independent nations, pre-eminent over their neighbours, the same remark was verified. Carthage & Rome tore one another to pieces instead of uniting their forces to devour the weaker nations of the Earth. The Houses of Austria & France were hostile as long as they remained the greatest powers of Europe. England & France have succeeded to the pre-eminence & to the enmity. To this principle we owe perhaps our liberty. A coalition between those powers would have been fatal to us. Among the principal members of antient & modern confederacies, we find the same effect from the same cause. The contentions, not the Coalitions of Sparta, Athens & Thebes, proved fatal to the smaller members of the Amphyctionic Confederacy. The contentions, not the combinations of Prussia & Austria, have distracted & oppressed the Germanic empire. Were the large States formidable singly to their smaller neighbours? On this supposition the latter ought to wish for such a general Govt. as will operate with equal energy on the former as on themselves. The more lax the band, the more liberty the larger will have to avail themselves of their superior force. Here again Experience was an instructive monitor. What is the situation of the weak compared with the strong in those stages of Civilization in which the violence of individuals is least controuled by an efficient Government? The Heroic period of antient Greece the feudal licentiousness of the middle ages of Europe, the existing condition of the American Savages, answer this question. What is the situation of the minor sovereigns in the great society of independent nations, in which the more powerful are under no controul but the nominal authority of the law of Nations? Is not the danger to the former exactly in proportion to their weakness. But there are cases still more in point. What was the condition of the weaker members of the Amphyctionic Confederacy. Plutarch (life of Themistocles) will inform us that it happened but too often that the strongest cities corrupted & awed the weaker, and that Judgment went in favor of the more powerful party. What is the condition of the lesser states in the German Confederacy? We all know that they are exceedingly trampled upon; and that they owe their safety as far as they enjoy it, partly to their enlisting themselves, under the rival banners of the pre-eminent members, partly to alliances with neighbouring Princes which the Constitution of the Empire does not prohibit. What is the state of things in the lax system of the Dutch Confederacy? Holland contains about ½ the People, supplies about ½ of the money, and by her influence, silently & indirectly governs the whole republic. In a word; the two extremes before us are a perfect separation & a perfect incorporation, of the 13 States. In the first case they would be independent nations subject to no law, but the law of nations. In the last, they would be mere counties of one entire republic, subject to one common law. In the first case the smaller States would have every thing to fear from the larger. In the last they would have nothing to fear. The true policy of the small States therefore lies in promoting those principles & that form of Govt. which will most approximate the States to the condition of counties. Another consideration may be added. If the Genl Govt. be feeble, the large States distrusting its continuance, and foreseeing that their importance & security may depend on their own size & strength, will never submit to a partition. Give to the Genl. Govt. sufficient energy & permency, & you remove the objection. Gradual partitions of the large, & junctions of the small States will be facilitated, and time may effect that equalization, which is wished for by the small States now, but can never be accomplished at once.1
1. JM may have combined two separate speeches into one. Yates, Lansing, and Paterson have him speaking twice on this subject.
Yates’s version (first speech):
“Mr. Madison. I am against the motion. I confess the necessity of harmonizing, and if it could be shown that the system is unjust or unsafe, I would be against it. There has been much fallacy in the arguments advanced by the gentleman from Maryland. He has, without adverting to many manifest distinctions, considered confederacies and treaties as standing on the same basis. In the one, the powers act collectively, in the other individually. Suppose, for example, that France, Spain and some of the smaller states in Europe, should treat on war or peace, or on any other general concern, it would be done on principles of equality; but if they were to form a plan of general government, would they give, or are the greater states obliged to give, to the lesser, the same and equal legislative powers? Surely not. They might differ on this point, but no one can say that the large states were wrong in refusing this concession. Nor can the gentleman’s reasoning apply to the present powers of congress; for they may and do, in some cases, affect property, and in case of war, the lives of the citizens. Can any of the lesser states be endangered by an adequate representation? Where is the probability of a combination? What the inducements? Where is the similarity of customs, manners or religion? If there possibly can be a diversity of interest, it is the case of the three large states. Their situation is remote, their trade different. The staple of Massachusetts is fish, and the carrying trade—of Pennsylvania, wheat and flour—of Virginia, tobacco. Can states thus situated in trade, ever form such a combination? Do we find those combinations in the larger counties in the different state governments to produce rivalships? Does not the history of the nations of the earth verify it? Rome rivalled Carthage, and could not be satisfied before she was destroyed. The houses of Austria and Bourbon acted on the same view—and the wars of France and England have been waged through rivalship; and let me add, that we, in a great measure, owe our independency to those national contending passions, France, through this motive, joined us. She might, perhaps, with less expense, have induced England to divide America between them. In Greece the contention was ever between the larger states. Sparta against Athens—and these again, occasionally, against Thebes, were ready to devour each other. Germany presents the same prospect—Prussia against Austria. Do the greater provinces in Holland endanger the liberties of the lesser? And let me remark, that the weaker you make your confederation, the greater the danger to the lesser states. They can only be protected by a strong federal government. Those gentlemen who oppose the Virginia plan do not sufficiently analyze the subject. Their remarks, in general, are vague and inconclusive” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 455–56).
Yates’s version (second speech):
“Mr. Madison. There is danger in the idea of the gentleman from Connecticut. Unjust representation will ever produce it. In the United Netherlands, Holland governs the whole, although she has only one vote. The counties in Virginia are exceedingly disproportionate, and yet the smaller has an equal vote with the greater, and no inconvenience arises” (ibid., I, 457).
“Madison—The Gentlemen who oppose the plan of a representation founded on Numbers, do not distinguish accurately—they use general terms—speake of Tyranny—of the small states being swallowed up by large ones. of combinations between Mass. Penn. & Virgin. no circumstance of Religion, Habits, manners, mode of thinking, course of Business, manufactures, commerce, or natural productions establishes a common interest between them exclusive of all the other States—If this was the case, there is no Fact in the History of man or nations that authorities the Jealousy. Engld. & France might have divid America—The great States, of Athens & Sparta members of the Amphictionic Council never combined to oppress the other Cities—they were Rivals and fought each other—The larger members of the Helvetic Union never combined agt. the small states—Those of the Netherlands never entered into such a combination—In Germany the large Members have been at war wh. each other, but never combined agt. the inferior members—
“These Facts are founded in an inherent principle in the Nature of man & Nations who are but an aggregate of men—When Men or Nations are large, strong, and also nearly equal, they immediately become Rivals—The Jealousy of each other prevents their Union” (ibid., I, 458).
Lansing’s version (first speech):
“Madison—Fallacy of Argument owing to a Connection of Legislative Ideas with Right of making Treaties.
“Are the larger States congenial to each other by Proximity common Interests or Similarity of Pursuits? They are not—they are so situated as to perpetuate Diversity of Interests.
“The Staple of Massachusetts is Fish and she has carrying Trade—that of Pennsylvania Wheat and Virginia Tobacco.
“Equality will uniformly excite Jealousy—Did Rome and Carthage combine to destroy their Neighbours?
“This Question will determine whether we shall confederate at all or partial Confederations shall be formed” (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. 90–91).
Lansing’s version (second speech):
“Madison—Efficient Government can only be formed by apportioning Representation.
“The States may be equalized by general Government” (ibid., p. 91).
Paterson’s version (first speech):
“Have we seen the Great Powers of Europe combining to oppress the small—
“They talk in vague Terms of the great States combining &c” (Ms [DLC: Paterson Papers]).
Immediately following the first sentence appears the phrase, apparently in Paterson’s hand: “Yes—the division of Poland.”
Paterson’s version (second speech):
“If you form the present Government, the States will be satisfied—and they will divide and sub-divide so as to become nearly equal” (ibid.).