Rule of Representation in
the First Branch of the Legislature
[29 June 1787]
Mr. Madison agreed with Docr. Johnson, that the mixed nature of the Govt. ought to be kept in view; but thought too much stress was laid on the rank of the States as political societies. There was a gradation, he observed from the smallest corporation, with the most limited powers, to the largest empire with the most perfect sovereignty. He pointed out the limitations on the sovereignty of the States, as now confederated their laws in relation to the paramount law of the Confederacy were analogous to that of bye laws to the supreme law, within a State.1 Under the proposed Govt. the Powers of the States will be much farther reduced. According to the views of every member, the Genl. Govt will have powers far beyond those exercised by the British Parliament, when the states were part of the British Empire.2 It will in particular have the power, without the consent of the state Legislatures, to levy money directly on the people themselves; and therefore not to divest such unequal portions of the people as composed the several States, of an equal voice, would subject the sy[s]tem to the reproaches & evils which have resulted from the vicious representation in G.B.
He entreated the gentlemen representing the small States to renounce a principle wch. was confessedly unjust, which cd. never be admitted, & if admitted must infuse mortality into a Constitution which we wished to last for ever. He prayed them to ponder well the consequences of suffering the Confederacy to go to pieces. It had been sd. that the want of energy in the large states wd. be a security to the small. It was forgotten that this want of energy proceeded from the supposed security of the States agst. all external danger. Let each state depend on itself for its security, & let apprehensions arise of danger, from distant powers or from neighbouring states, & the languishing condition of all the states, large as well as small, wd. soon be transformed into vigorous & high toned Govts. His great fear was that their Govts. wd. then have too much energy, that these might not only be formidable in the large to the small States, but fatal to the internal liberty of all. The same causes which have rendered the old world the Theatre of incessant wars, & have banished liberty from the face of it, wd. soon produce the same effects here. The weakness & jealousy of the small States wd. quickly introduce some regular military force agst. sudden danger from their powerful neighbours. The example wd. be followed by others, and wd. soon become universal. In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of war, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing m[a]xim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people. It is perhaps questionable, whether the best concerted system of Absolute power in Europe cd. maintain itself, in a situation, where no alarms of external danger cd. tame the people to the domestic yoke. The insular situation of G. Britain was the principal cause of her being an exception to the general fate of Europe. It has rendered less defence necessary, and admitted a kind of defence wch. cd. not be used for the purpose of oppression. These consequences he conceived ought to be apprehended whether the States should run into a total separation from each other, or shd. enter into partial confederacies. Either event wd. be truly deplorable; & those who might be accessary to either, could never be forgiven by their Country, nor by themselves.3
1. JM interlined “their laws … State” at a later time. He evidently derived the substance of this insertion from Yates.
2. When Yates’s notes were first published in full in 1821, JM took strong exception to the New Yorker’s account of JM’s speeches. He particularly objected to Yates’s version of this first section of his 29 June speech. See, for example, JM to Joseph Gales, 26 Aug. 1821; JM to Nicholas P. Trist, December 1831; JM to William C. Rives, 21 Oct. 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, 446–47, 516–18, 521–24). See also the discussion in Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , III, 21–22, 85–87, and Arnold A. Rogow, “The Federal Convention: Madison and Yates,” AHR description begins American Historical Review. description ends , LX (1954–55), 327–29.
3. Yates’s version:
“Mr. Madison. Some gentlemen are afraid that the plan is not sufficiently national, while others apprehend that it is too much so. If this point of representation was once well fixed, we would come nearer to one another in sentiment. The necessity would then be discovered of circumscribing more effectually the state governments and enlarging the bounds of the general government. Some contend that states are sovereign, when in fact they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in congress. Their voting, as states, in congress, is no evidence of sovereignty. The state of Maryland voted by counties—did this make the counties sovereign? The states, at present, are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general confederation. The states ought to be placed under the control of the general government—at least as much so as they formerly were under the king and British parliament. The arguments, I observe, have taken a different turn, and I hope may tend to convince all of the necessity of a strong energetic government, which would equally tend to give energy to, and protect the state governments. What was the origin of the military establishments of Europe? It was the jealousy which one state or kingdom entertained of another. This jealousy was ever productive of evil. In Rome the patricians were often obliged to excite a foreign war to divert the attention of the plebeians from encroaching on the senatorial rights. In England and France, perhaps, this jealousy may give energy to their governments, and contribute to their existence. But a state of danger is like a state of war, and it unites the various parts of the government to exertion. May not our distractions, however, invite danger from abroad? If the power is not immediately derived from the people, in proportion to their numbers, we may make a paper confederacy, but that will be all. We know the effects of the old confederation, and without a general government this will be like the former” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 471–72).
“Madison—We are vague in our Expressions—we speak of the sovereignty of the States—they are not sovereign—there is a regular gradation from the lowest Corporation, such as the incorporation of mechanicks to the most perft. Sovereignty—The last is the true and only Sovereignty—the states are not in that high degree Sovereign—they are Corporations with power of Bye Laws” (ibid., I, 477).
“Will have the States considered as so many great Corporations, and not otherwise” (Ms [DLC: Paterson Papers]).