Founding America: Documents from the Revolution to the Bill of Rights

by Jack N. Rakove (editor)

  A Government composed of such extensive powers should be well organized and balanced. The legislative department might be divided into two branches; one of them chosen every __ years by the people at large, or by the Legislatures; the other to consist of fewer members, to hold their places for a longer term, and to go out in such a rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently exercised by this branch. As a further check, a council of revision including the great ministerial officers might be superadded.

  A National Executive must also be provided. I have scarcely ventured as yet to form my own opinion either of the manner in which it ought to be constituted or of the authorities with which it ought to be cloathed.

  An article should be inserted expressly guarantying the tranquillity of the States against internal as well as external dangers.

  In like manner the right of coercion should be expressly declared. With the resources of Commerce in hand, the National administration might always find means of exerting it either by sea or land; But the difficulty & awkwardness of operating by force on the collective will of a State, render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the General and particular authorities, as to answer this purpose or perhaps some defined objects of taxation might be submitted along with commerce, to the general authority.

  To give a new System its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures. This will be the more essential as inroads on the existing Constitutions of the States will be unavoidable.

  The inclosed address to the States on the subject of the Treaty of peace has been agreed to by Congress, & forwarded to the several Executives. We foresee the irritation which it will excite in many of our Countrymen; but could not withhold our approbation of the measure. Both the resolutions and the address, passed without a dissenting voice.

  Congress continue to be thin, and of course do little business of importance. The settlement of the public accounts,—the disposition of the public lands, and arrangements with Spain, are subjects which claim their particular attention. As a step towards the first, the treasury board are charged with the task of reporting a plan by which the final decision on the claims of the States will be handed over from Congress to a select sett of men bound by the oaths, and cloathed with the powers of Chancellors. As to the Second article, Congress have it themselves under consideration. Between 6 & 700 thousand acres have been surveyed and are ready for sale. The mode of sale however will probably be a source of different opinions; as will the mode of disposing of the unsurveyed residue. The Eastern gentlemen remain attached to the scheme of townships. Many others are equally strenuous for indiscriminate locations. The States which have lands of their own for sale are suspected of not being hearty in bringing the federal lands to market. The business with Spain is becoming extremely delicate, and the information from the Western settlements truly alarming.

  A motion was made some days ago for an adjournment of Congress for a short period, and an appointment of Philad.a for their reassembling. The eccentricity of this place as well with regard to E. and West as to N. & South has I find been for a considerable time a thorn in the minds of many of the Southern members. Suspicion too has charged some important votes on the weight thrown by the present position of Congress into the Eastern Scale, and predicts that the Eastern members will never concur in any substantial provision or movement for a proper permanent seat for the National Government whilst they remain so much gratified in its temporary residence. These seem to have been the operative motives with those on one side who were not locally interested in the removal. On the other side the motives are obvious. Those of real weight were drawn from the apparent caprice with which Congress might be reproached, and particularly from the peculiarity of the existing moment. I own that I think so much regard due to these considerations, that notwithstanding the powerful ones on the other side, I should have assented with great repugnance to the motion, and would even have voted against it if any probability had existed that by waiting for a proper time, a proper measure might not be lost for a very long time. The plan which I sh.d have judged most eligible would have been to fix on the removal whenever a vote could be obtained but so as that it should not take effect until the commencement of the ensuing federal year. And if an immediate removal had been resolved on, I had intended to propose such a change in the plan. No final question was taken in the case. Some preliminary questions shewed that six States were in favor of the motion. Rho. Island the 7.th was at first on the same side, and Mr. Varnum, one of the delegates continues so. His colleague was overcome by the solicitations of his Eastern brethren. As neither Maryland nor South Carolina were on the floor, it seems pretty evident that N. York has a very precarious tenure of the advantages derived from the abode of Congress.

  We understand that the discontents in Massts, which lately produced an appeal to the sword, are now producing a trial of strength in the field of electioneering. The Governor will be displaced.43 The Senate is said to be already of a popular complexion, and it is expected that the other branch will be still more so. Paper money it is surmised will be the engine to be played off ag.ts creditors both public and private. As the event of the elections however is not yet decided, this information must be too much blended with conjecture to be regarded as a matter of certainty.

  I do not learn that the proposed Act relating to Vermont has yet gone through all the stages of legislation here; nor can I say whether it will finally pass or not. In truth, it having not been a subject of conversation for some time, I am unable to say what has been done or is likely to be done with it. With the sincerest affection & the highest esteem I have the honor to be, Dear Sir your devoted Serv.t

  RIVAL VISIONS OF UNION

  Edmund Randolph Introduces the Virginia Plan (May 29, 1787)

  PAGE 335

  William Paterson Introduces the New Jersey Plan (June 15, 1787)

  PAGE 339

  Alexander Hamilton Discusses the Two Proposed Plans and Introduces His Own (June 18, 1787)

  PAGE 343

  James Madison Discusses the Plans (June 19, 1787)

  PAGE 352

  Oliver Ellsworth Discusses Questions of Representation (June 29, 1787)

  PAGE 359

  James Wilson, Oliver Ellsworth, and James Madison Debate

  (June 30, 1787)

  PAGE 361

  General Debate Following Decision for Equality of Suffrage in the Senate (July 16, 1787)

  PAGE 366

  ONCE THE CONVENTION MET, it followed the agenda that Madison had formed in the early spring. While waiting for other delegations to straggle into Philadelphia, the Virginia delegates drafted a plan that Governor Edmund Randolph finally introduced on May 29. From that moment on, it was evident that the convention was discussing a wholesale change of government rather than a mere revision of the Articles of Confederation. Not only did the Virginia Plan call for the creation of a full government, with independent legislative, executive, and judicial departments. It also proposed abandoning the rule of one state, one vote under which Congress had operated since 1774. The Virginia Plan proposed applying rules of proportional representation to both houses of the new national legislature. More than that, the Virginia delegates and allies from other populous states insisted that this principle had to be accepted first, before the convention could go on to ask exactly how powerful a government it wanted to create.

  Delegates from the small states waited a fortnight to present their alternative. On June 15, William Paterson of New Jersey introduced the New Jersey Plan, which would have preserved the unicameral Congress with modestly augmented powers. One noteworthy response came three days later when Alexander Hamilton gave a lengthy, much admired, but finally unpersuasive speech suggesting that what the country really
needed was a constitution much closer in form and substance to the government of Great Britain. The next day Madison gave a speech that restated many of his fundamental criticisms of the Articles of Confederation (which the New Jersey Plan would only enlarge, not replace).

  The convention then rejected the New Jersey Plan, but the central issue remained before them: whether a principle of proportional representation should be applied to both houses of the proposed national legislature, or whether the upper house (eventually known as the Senate) should preserve the rule of an equal vote for each state. The delegates debated this question repeatedly over the next month. Then, in the critical vote of July 16, it narrowly endorsed the small states’ demand, by a vote of five states to four with one state, populous Massachusetts, divided. The next morning, the dismayed delegates from the large states briefly discussed whether they could proceed on this basis, and reluctantly agreed that they should.

  Our principal sources for what was said at Philadelphia are the notes of debate that Madison conscientiously kept. Madison had been frustrated by how little he had been able to learn in his own private researches into the origins of other confederacies, ancient and modern. He accordingly determined to keep an accurate record of the proceedings at Philadelphia. “Nor was I unaware,” he later observed, “of the value of such a contribution to the fund of materials for the History of a Constitution on which would be staked the happiness of a young people great even in its infancy, and possibly the cause of Liberty throughout the world.” Madison placed himself at the front of the chamber, immediately in front of the presiding officer, and did his best to summarize what each speaker said. He did not, of course, take verbatim transcripts, and his notes captured only a fraction of what was spoken. Yet they also convey the tone as well as substance of many speeches.

  Madison’s notes were published only in 1840, four years after his death. He first began editing them in the early 1790s but continued to do so during his long retirement, taking advantage of the publication of the official journal of motions and votes kept, rather sloppily, by William Jackson, the convention’s secretary, and of other notes of debates kept by New York delegate Robert Yates. Following the editorial procedures used by Max Farrand in his definitive edition of The Records of the Federal Convention of 1787, the debates reprinted below use square brackets to indicate later insertions to Madison’s notes from the journals and angled brackets to identify later additions or clarifications to the delegates’ speeches.

  EDMUND RANDOLPH INTRODUCES

  THE VIRGINIA PLAN

  MAY 29, 787

  MR. RANDOLPH44 [THEN] OPENED the main business.

  He expressed his regret, that it should fall to him, rather than those, who were of longer standing in life and political experience, to open the great subject of their mission. But, as the convention had originated from Virginia, and his colleagues supposed, that some proposition was expected from them, they had imposed this task on him.

  He then commented on the difficulty of the crisis, and the necessity of preventing the fulfilment of the prophecies of the American downfal.

  He observed that in revising the fœderal system we ought to inquire 1. into the properties, which such a government ought to possess, 2. the defects of the confederation, 3. the danger of our situation &. 4. the remedy.

  1. The character of such a governme[nt] ought to secure 1. against foreign invasion: 2. against dissentions between members of the Union, or seditions in particular states: 3. to p[ro]cure to the several States various blessings, of which an isolated situation was i[n]capable: 4. to be able to defend itself against incroachment: & 5. to be paramount to the state constitutions.

  2. In speaking of the defects of the confederation he professed a high respect for its authors, and considered, them as having done all that patriots could do, in the then infancy of the science, of constitutions, & of confederacies,—when the inefficiency of requisitions was unknown—no commercial discord had arisen among any states—no rebellion had appeared as in Massts.—foreign debts had not become urgent—the havoc of paper money had not been foreseen—treaties had not been violated—and perhaps nothing better could be obtained from the jealousy of the states with regard to their sovereignty.

  He then proceeded to enumerate the defects: 1. that the confederation produced no security agai[nst] foreign invasion; congress not being permitted to prevent a war nor to support it by th[eir] own authority—Of this he cited many examples; most of whi[ch] tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.

  2. that the fœderal government could not check the quarrals between states, nor a rebellion in any not having constitutional power Nor means to interpose according to the exigency:

  3. that there were many advantages, which the U. S. might acquire, which were not attainable under the confederation—such as a productive impost—counteraction of the commercial regulations of other nations—pushing of commerce ad libitum—&c &c.

  4. that the fœderal government could not defend itself against the incroachments from the states:

  5. that it was not even paramount to the state constitutions, ratified as it was in many of the states.

  3. He next reviewed the danger of our situation appealed to the sense of the best friends of the U. S.—the prospect of anarchy from the laxity of government every where; and to other considerations.

  4. He then proceeded to the remedy; the basis of which he said, must be the republican principle.

  He proposed as conformable to his ideas the following resolutions, which he explained one by one.

  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 peculiarly 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; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.

  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.

  9. 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, 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 tribunal 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