Rule of Representation in the Senate
[29 June 1787]
Ellsworth, arguing the advantages of making “the general government partly federal and partly national,” moved that each state have an equal vote in the Senate (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 474).
Mr. Madison. I would always exclude inconsistent principles in framing a system of government. The difficulty of getting its defects amended are great and sometimes insurmountable. The Virginia state government was the first which was made, and though its defects are evident to every person, we cannot get it amended. The Dutch have made four several attempts to amend their system without success. The few alterations made in it were by tumult and faction, and for the worse. If there was real danger, I would give the smaller states the defensive weapons—But there is none from that quarter. The great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. Look to the votes in congress, and most of them stand divided by the geography of the country, not according to the size of the states.
Suppose the first branch granted money, may not the second branch, from state views, counteract the first? In congress, the single state of Delaware prevented an embargo, at the time that all the other states thought it absolutely necessary for the support of the army. Other powers, and those very essential, besides the legislative, will be given to the second branch—such as the negativing all state laws. I would compromise on this question, if I could do it on correct principles, but otherwise not—if the old fabric of the confederation must be the ground-work of the new, we must fail.1
Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 475–76 (Yates).
1. King’s version:
“Madison—The Gentleman from Connecticut has proposed doing as much at this Time as is prudent, and leavg. future amendments to posterity—this a dangerous Doctrine—the Defects of the Amphictionick League were acknowledged, but they never cd. be reformed, the U Netherlands have attempted four several Times to amend their Confederation, but have failed in each Attempt—The fear of Innovation, and the Hue & Cry in favor of the Liberty of the people will prevent the necessary Reforms—If the States have equal, influence, and votes in the Senate, we are in the utmost Danger—Delaware during the War opposed and defeated an Embargo agreed to by 12. States; and continued to supply the Enemy with provisions during the war” (ibid., I, 478).
“Madison—Examine Journals of Congress—see whether States have been influenced by Magnitude. Small States have embarrassed us—Embargo agreed to by twelve States during the War—Deleware declined it.…
“Madison—If there was any Difference of Interests would agree to equal Representation.
“Let Gentleman recollect the Experiments that have been made to amend Confederation—they always miscarried. The Dutch Republics made four several Experiments all ineffectual” (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. 94–95).
Lansing divided JM’s second speech in two (see ibid., pp. 94–95 nn. 135, 141).
[30 June 1787]
Ellsworth spoke in favor of equal representation of the states in the Senate.
Mr. Madison did justice to the able & close reasoning of Mr. E. but must observe that it did not always accord with itself.1 On another occasion, the large States were described by him as the Aristocratic States, ready to oppress the small. Now the small are the House of Lords requiring a negative to defend them agst. the more numerous Commons. Mr. E. had also erred in saying that no instance had existed in which confederated States had not retained to themselves a perfect equality of suffrage. Passing over the German system in which the K. of Prussia has nine voices, he reminded Mr. E. of the Lycian confederacy, in which the component members had votes proportioned to their importance, and which Montesquieu recommends as the fittest model for that form of Government. Had the fact been as stated by Mr. E. it would have been of little avail to him, or rather would have strengthened the arguments agst. him; The History & fate of the several Confederacies modern as well as Antient, demonstrating some radical vice in their structure. In reply to the appeal of Mr. E. to the faith plighted in the existing federal compact, he remarked that the party claiming from others an adherence to a common engagement ought at least to be guiltless itself of a violation. Of all the States however Connecticut was perhaps least able to urge this plea. Besides the various omissions to perform the stipulated acts from which no State was free, the Legislature of that State had by a pretty recent vote, positively refused to pass a law for complying with the Requisitions of Congs. and had transmitted a copy of the vote to Congs. It was urged, he said, continually that an equality of votes in the 2d. branch was not only necessary to secure the small, but would be perfectly safe to the large ones whose majority in the 1st. branch was an effectual bulwark. But notwithstanding this apparent defence, the Majority of States might still injure the majority of people. 1. they could obstruct the wishes and interests of the majority. 2. they could extort measures repugnant to the wishes & interest of the Majority. 3. they could impose measures adverse thereto; as the 2d. branch will probly. exercise some great powers, in which the 1st. will not participate. He admitted that every peculiar interest whether in any class of Citizens, or any description of States, ought to be secured as far as possible. Wherever there is danger of attack there ought be given a constitutional power of defence. But he contended that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large & small States: It lay between the Northern & Southern. And if any defensive power were necessary, it ought to be mutually given to these two interests.2 He was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. The one which had occurred was that instead of proportioning the votes of the States in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of 5 to 3, they should be represented in one branch according to the number of free inhabitants only, and in the other according to the whole no. counting the slaves as free. By this arrangement the southern Scale would have the advantage in one House, and the Northern in the other. He had been restrained from proposing this expedient by two considerations; one was his unwillingness to urge any diversity of interests on an occasion where it is but too apt to arise of itself—the other was the inequality of powers that must be vested in the two branches, and which wd. destroy the equilibrium of interests.3
1. JM interlined “did justice … itself” at a later time. He originally wrote “observed that the reasoning of Mr. E. at different times did not well [illegible].” The first part of the insertion is a paraphrase of Yates.
2. JM later crossed through the concluding clause: “as a security agst. the encroachments of each other.”
3. Yates’s version:
“Mr. Madison. Notwithstanding the admirable and close reasoning of the gentleman who spoke last, I am not yet convinced that my former remarks are not well founded. I apprehend he is mistaken as to the fact on which he builds one of his arguments. He supposes that equality of votes is the principle on which all confederacies are formed—that of Lycia, so justly applauded by the celebrated Montesquieu, was different. He also appeals to our good faith for the observance of the confederacy. We know we have found one inadequate to the purposes for which it was made—Why then adhere to a system which is proved to be so remarkably defective? I have impeached a number of states for the infraction of the confederation, and I have not even spared my own state, nor can I justly spare his. Did not Connecticut refuse her compliance to a federal requisition? Has she paid, for the two last years, any money into the continental treasury? And does this look like government, or the observance of a solemn compact? Experience shows that the confederation is radically defective, and we must in a new national government, guard against those defects. Although the large states in the first branch have a weight proportionate to their population, yet as the smaller states have an equal vote in the second branch, they will be able to controul and leave the larger without any essential benefit. As peculiar powers are intended to be granted to the second branch, such as the negativing state laws, &c. unless the larger states have a proportionate weight in the representation, they cannot be more secure” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 496–97).
|“Mr. Maddison.||The Confedn. inadequate to its Purposes. Resoln. of Cont. refusing|
|“Lycia.||to comply with a federal Reqn.|
|Germanick||“Repeated Violations in every State. The Rule of Confdn. obtained|
|Body.”||by the Necessity of the Times.|
|“The large States will not be secure by the lower Branch.|
|“2d. Branch may possess a Negative over the Laws of the State-Lgs.”|
(Ms [DLC: Paterson Papers]).
Paterson recapitulated part of JM’s speech in notes made for a speech apparently never delivered. See Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 506.
“Madison—Equality of Representation was dictated by the Necessity of the Times. The larger States cannot be safe unless they have a greater Share in Government. Connecticut has shewn a Disregard to her fœderal Compact—She has declined complying with Requisition” (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. 97).
[30 June 1787]
Wilson proposed that there be a senator for every 100,000 people, and that states having less than that population be allowed one senator.
Mr. Madison would acquiesce in the concession hinted by Mr. Wilson, on condition that a due independence should be given to the Senate. The plan in its present shape makes the Senate absolutely dependent on the States. The Senate therefore is only another edition of Congs.1 He knew the faults of that Body & had used a bold language agst. it. Still he wd. preserve the State rights, as carefully as the trials by jury.2
1. JM deleted the concluding phrase of this sentence: “with very few amendments.”
2. JM interlined the two preceding sentences, paraphrasing Yates, and heavily crossed through his original concluding sentence.
“Mr. Madison. I will not answer for supporting chimerical objects—but has experience evinced any good in the old confederation? I know it never can answer, and I have therefore made use of bold language against it. I do assert, that a national senate, elected and paid by the people, will have no more efficiency than congress; for the states will usurp the general government. I mean, however to preserve the state rights with the same care, as I would trials by jury; and I am willing to go as far as my honorable colleague” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 499–500).
|“Mr. Maddison.||The Amt. is Congress in a new Form; servile to the States.|
|“No Disposn. in [Cy.?] Rep. or Corporations to swallow up the Rest”|
(Ms [DLC: Paterson Papers]).