Appendix — Maryland Committee for Fair Representation v. Tawes

Supreme Court brief1964

Ask Donna

What actually matters in this document.

Text

TABLE OF CONTENTS: :

So ea ee

1. The history of the Federal Consgtution with regard io

representation in Congress_--.-~.------------------

ee SE

.b. The Federalist Papers._.:-..----- cabinets

c. Other post-convention ‘materials prior to the

4. patifying convehtion............-------+---

de The. ratifying conventions ...---------- shinies

- e. Materials on the Constitution originating. after

the start of the new government------------

2. Lhe views of Thomas Jefferson and James Madison on

} mt IG i oo itenonene

ee eT See enero hibnhatiane

€_

— 706-573>43--— 1

\ ”

if 5

‘

° .

aS $

ars :

’

“.

gi °

‘

' — :

* ° Ps

G .

“© APPENDIX B

1. THe History or tHE FepeRAL, CONSTITUTION WITH

REGARD TO ‘REPRESENTATION IN CONGRESS.

a. The Convention—The Confederation ‘of the

United States, which was formed in 1777 by the thir-

teen States, was explicitly a confederation of SOv-

ereign States. . Articles of Confederation, Article IT.

Each State, aithough, it could have two to seven dele-

gates to the Congress, had a single vote. Id., Art. V..

s While the power to make treaties and wage war was .

hy ; 5

Congress could not impose taxes, but could only ask

the States to contribute -pariicular sums. I[d., Art.

VI. ; eee Sie erat

The lack of’ power of the Confederation to ‘meet the.

‘growing problems of the former colonies led to -a

serious crisis. See The Federalist, Nos.-15~22 (Cooke

ed, 1961); pp. 90-146. The convention in Phila. |

delphia was ealled by the Congress by a resolution

dated February 21, 1787, “for the sole and express

purpose of revising the Articles of Confederation and

reporting to Congress and the several legislatures such

alterations and provisions therein as shall When agreed

to in Congress and confirmed by the states’ render the

federal . constitution adequate to the exigencies of . .

Government & the preservation’ of the Union,”

IIT Records of the Federal Convention (Farrand ed.,

7 1911),' 14. On May 18, 1787, a few days after the first

delegates arrived in Philadelphia, Benjamin Franklin.

describe d the meeting as “ag Convention of the prin-

“Herejinaftef referred to as “Farrand.” |

gts 7

‘4

: ee : z ‘e “9

‘cipal people in the several States, for the purpose ’

of revising the federal Constitution, and proposing |

such amendments as shall be thoroughly necessary.’’:

Letter to Richard Price, May 18, 1787, id. at 21.

4Phus, both the Congress. and ‘Franklin conceived of

the purpose of the convention as merely to revise the

' Confederation, but to keep its essential form.

“On the other hand, some of the delegates arriving

in Philadelphia were proposing to form ‘an entirely

different kind of government, a national government:-*

_ in which.representation in the legislature would be on

the basis of population. George: Mason, a, delegate ©

- from Virginia, wrote saa son on May 20, 1787 (IIL

Farrand 23): . —°.. x

The most sian ‘idea in the principal

States seems to be a total. alternation of the’

present federal systeri, and substituting a great

national council or parliament, consisting of

two branches of the legislature, founded upon

. the pringiples of equal proportionate represen-

~ tatiori, with full, législative powers upon all

the subjects of the Union; and an executive:

and to make the several State legislatures sub-

_ ordinate to the national, by giving the latter

_ the power of a negative upon all such laws as

they shall judge contrary to the interest of the

fedéral Union. °

AN few days later, on May: 21, Mason wrote altnost \.

identirg words to Arthur Lee. -Ta- at 24. That same a

- day, reorge Read, a- dNegate from Delaware, wrote

?The terms seth ‘and federal. government vas ised by

othe framers themselves in conflicting ways apparently for par-

tisan advantage. Therefore, the ‘meaning can be ascertained

only from the particular context. We, however, use national

government to mean a government operating directly“ on the

people in which the States are plainly subordinate. , We use

Federal government to mean a government, which regu-

lated certain areas but with the other areas remaining under

the authority of sovereign 5 team ;

“of & proposal for a new federal.system (id. at 25):

eee

Sipe ar. 3

to’ John Dickinson, another delegate from Delaware,

-Some of its principal features are taken

from the New York system of government. A

house of delegates and senate for a ‘general

legislature, as to the great business: of the

_ Union. The first of them to be chosen by. the

_ Legislature of each: State, in proportion to its

- number of white inhabitants, and three-fifths

of all others, fixing a number for sending each

representative. The second, to wit, the senate,

to ‘be ‘elected by the delegates so: returned,

either from themselves or the people at large,

‘in four great districts, into which the United

States are to be divided for the purpose of

forming this senate from, which, when . so:

formed, is to he divided into four classes for

‘the purpose of an°annual rotation of a fourth

of the members.’

Read warned that the small States imust be careful ‘to

protect theiy interests. Ibid. George Mason wrote

his son on June 1 that (id. at 32): peretee ea a

The idea T formerly mentionéd- to you, be-

fore the Convention met, of a great national

council, consisting of two branches of the legis-.

lature, a judiciary and an executive: upon the

principle of fair representation in the legisla-

_ ture, with powers adapted to the great objects .

of the Union, and consequently a control

. . ——— In these instances, on the State legislatures.

is ‘still the prevalent. one. Virginia has had .

the honor of presenting the outlines of the

nian. °°? ©, . oe a

The convention held its first mecting o1# May 14, SY

1787, but was adjoined: because of lack of a quortm.

[ Farrand 1. Soon after regular sessions started on

May 25th, the convention started to, do its ‘work

*The New York “Senate and Assembl¥: ‘were apportioned by/ -

eligible voters. New York Constitution of! 1777. Articles 4. 12.

saan eee

through a Committee of the Whole. On May 31, in-

-* debate on whether. the first branch of the legislature _

should be elected: diredtly by the people, George

‘Mason qi Farrand 48-49) : ; F

‘ wee argued dinate for an election of. the ;

larger branch by the people. It was to be the

grand depository of ‘the democratic sa

of the Govt.

During ‘debate on June 6th on. whether the upper

house of the new legislature should be elected by the.

- - state legislatures instead of the people, Pierce Butler,

&y of South Carolina stated that he opposed “deter-

meer the mode of election until the ratio of Repre-

ion is fixed—if that proceeds on a principle.

favorable to wealth as well as number of Free In-

‘habitants, I am coritent to unite wh. Delaware: (Mr. .

Read) in abolishing the. State Legislatures, and he-

* coming one Nation instead of a confedn.-of Repub-

‘* lies"? [King].* 1 Farrand. 144. The next day, in ‘

" . * continuing the debate on the sarie proposals, Madison -

‘said that if the Senate was to be elected by the state

legislatures (id. at-151) :

*.* * we must either depart from the cities

." of: proportional representation; or admit into

. the Senate avery large number of members.

The first is inadmissible, being evidently un-

just. The second:is inexpedient. 7

* "George Mason stated (id.at 161):°. = 2 + ia

- ’* All references to the proceediffZs of the constitutional con

ac vention are to the offigial Journal or to Madison’s notes unless ~..

otherwise indicated, Rufus King of Massachusetts and Robert

Yates of New York also made no ane part of the proceedings

_to which. we will occasionally refer. ,

Farrand believes was given on June.7. I Farrand 160-161, |

note 8. azo a.

° .

The treaties, leagues, arid =confederacies: be-

tween different’ sovereign, independent powers

‘ have been urged as proofs in support of. the

propriety and justice of the-single and equal

representation of each individua] State in the

‘American Unién; and thence corclusions have

been drawn. that the people of these United

°- States would refuse to adopt a government

founded more on an equal representation of

the people themselves, than on the distinct ~

7 representation of .each separate, individual

State. \ If the different States in. our Union

always had been as now substantially and in -

reality distinct, sovereign and independent, -

this kind of: reasoning would have. great

Tee SB

“On June 8th; Gunning Bedford. of Delawate om: Ee

pyaned at attempts (1 Farrand 167):

* * * to strip the small. States of their ‘equal

right of suffrage. In this case Delaware would

have about 1/90 for its ‘share ‘in the General

Councils, whilst Pa. & Va, would possess 14 of

_the whole. * * * This shows the impossibility

_.of adoptihg such a system as that on the. table,

or any other founded on a change in the prin-

ciple of representation. i

The next day,. June 9th, the Cceditns. 6f* the

Whole considered the resolution (I Farrand 181):

Resolved, therefore, that the rights of suf-

_ frage in the national legislature ought to be ap-

- portioned tothe quotas of contribution, er to the

number of inhabitants, as the-one or other rule-

mai seem bést in ‘(different cases. -[ Yates].

A long dehate ensued. Wilham i iahete of New.

. Jersev said that (id.at 17) +

A 1, OH Hye proposition for a proportional! rep-~

-. resentation [struck] at: the ‘existence of. the

lesser States. He wd. premise however .to an.

investigation of this que stion some‘remarks on

os 6

- _ the. nature structure and powers of the Con- °

, vention. The Convention he said was formed

in pursuance of ‘an Act of Congs. that this act

‘ was recited in several of the Cornmissions, par-

ticularly that of Massts, which he required to |

be read: That the amendment of the confed-

eraty was the object of all the laws and com-

missions,on the subject; that the articles of the.

— tion were therefore the’ proper basis — .

the proceedings of the Convention. .We

sh to keep within its limits, or we should

be charged by our constituents * with ‘usur-

: pation.. ;

Paterson then stated (id, at 178): vies

eee A confederacy supposes EEN in the

'/- members composing it & sovereignty supposes

= equality. If we are to be considered. as a na-

tion, all State distinctions must be abolished,

the whole must he thrown into hotchpot, and |

- when an equal division is made, then there may

_be fairly an equality of representation.

Paterson’s notes: for’ his. speech on June 9th state ,

(id. at 186) : ; ?

Each State is %vereign, free, and. edlepend-

’ ent, ete. Sovereigrity includes Equality—

If then the States in Union are as States still

to continue. in U nion, they must. be considered

as Equals— "i

13° sovereign and independent leates ean

never constitute one Nation, and at the same ©

Time be. States—they may be Treaty make one

confederated Body—

James Wilson of Pennsylvania, a proponent of a —

strong national government (I Farrand 179-180) :

* * * entered Aaborately into the defence of a °

proportional] representation, stating for his first

position that as all authority was derived from

the people, ‘equal numbers of people ought te

have an ecfital no. of representatives, and dif-~ .

ferent -numbers of people different matnbese of

eee ae This principle had been im-

rly violated iri the Confederation, owing

e urgent circumstances of the time. * * *

Mr. P. admitted persons, not property’ to be

the measure of suffrage. Afe not the citizens

of Pena. equal to those of N. Jersey? does it

require. 150 of the former to balance 50 of the

- latter? Representatives of different districts

ought clearly to hold the same proportion to

each other, as their aa aan constituents hold ZG

each other.

The next speaker, Hugh Ww liamson of North Carolina

(id. at 180):

? ee PP caaege the cases by a comparison’ “of

aes the different. States, to Countiesof different

sizes within the same States; observing that

' proportional representation was admitted to be _

just in the latter case, and could not therefore .

be fairly contested in "the former. aa

Judge David ‘Brearly of New Jersey agreed with Pat-

_ erson (id. at: 181-182) :

If the states still remain SOV ereign, the form of —

the present resolve is: founded on principles of

injustice. He then stated the comparative _

weight of each state—the number of votes 90. ”

Georgia would be 1, Virginia 16, and so of the

-rest. ‘This vote must defeat itself, or end in

despotism. If we must have a national govern-

. ment, what is the remedy? Li-y thé map of the ©

_ confederation on the table, and extinguish the

present boundary lines pyam respective state

_ . Jurisdictions, and make a new division so that__'

each state is equal—then:a government on the

present system: will be just. - [Yates]

In contrast, Edward Carrington wrote Thomas Jef-

ferson on the same day that the basic issnes be fore

the convention hier Farrand pees)

[A a WER eh BEES asin d SR6dR, wane Servs tran RAP Lite TR PRE A RIE IEG AS MSE pen

. ° oa ®

. ye ag ES. NY ee ik PRY we

2 ‘Mea Wea Tae ee, ee el oN

2 os ; é ™ e :

O'8'F te spaniels to two se dhisee x—the first, as.

e - eonsolidation of the whole Empire inte one re-

Aublic, leaving in the states nothing more :thai:

‘subordinate courts for facilitating the adrhin-

‘ istration of the Laws—the second an investiture -

- of“of [sic] a foederal sovereignty with full and.

independant authority as to the Trade, Reve-

nues, and forces of the Union, and the: rights of » aes

and’ War,. together with a Negative upon *

all the Acts of the State legislatures. the first

idéa, I apprehend, would be impracticable, and

therefore do not suppose it. can be adopted—.

_ general: Laws through a Country embracing so

vy Borey productions, .aid- manners, as. -..

ited States, would operate many oppres-

Ming! A pe & a general tegislature’.would, bé found |

. _ incompetent to the formation of local ones, as” ce

Sa majority would, in every instance, be ignorarit et. Gee

of, and unaffected hy thie objects ofelegisla . ~*~ — ,

ay * tion * *-* Something tike the second will . en

* probably: be formed—indeed I am certain’ that

nothing less than what will give the foederal

-. sovereignty compleat. controul over the State

Governments, will che thought worthy of dis-

J * * #

eyssion fe

On June 11, ‘1787, a resolution was: introduc ed (1.

Far rand 192-193) :. a .

that the right of suffrage in ‘tai first braneh ‘of

‘ the riational Legislature ought not to be accord- —— -

-ing to'the rule established in the articles of con- )

federation ; but according’ to some equitable ratio lee

; of representation, ** * in proportion to the >: »®

oe. whole number of white ‘and other ‘free Citizens

and ‘inhabitants of every age; sex and condition, -

- ineluding those bound to servitude for a term of

years, and three fifths of all other persons. not

' + comprehended in the foregoing’ description, ex- . | |

oe Indians, not paying taxes in each State. es

+S The resolution was ‘passed 9 to 2° by th Conimittee

of the W hole with only New’ Jersey ‘and; Delaware op- __

posing. Roger Sherman of Connecticut then proposed.

: rae,

<>)

’

5 :

a.) % gt

e ° . ~

9 ; ¢

for the first time the plan which was uitimately.

| adopted for the Congress: ‘‘[¢Jhat in. the steend—

braneh of the National Legigature each State have

One vote.” Id. at 193.. Sherman explained a at

204) : pier

erkiis that as the mr, ought to have the elee-.

tion of one of the brar@hes of the legislature, .

- the legislature of each@state qught, to have the .

election of. the second branch, in order to pre- .

serve the state sovereignty ; ‘and: that each state - -

«ought in this branch to have.one vote. [Yates]

The resolation was rejected 6 states. to 5. Id. at 193.

James’ Wilson, then proposed a’ resolution, which was

seconded by Alexander Hamilton:, ‘that the right of .

’ suffrage. in the second. branch of the national Legis-

lature ought tobe: according to the rule established .

in the first.” ‘Ibid. This resolution was passed 6 to 5:

The debate ‘on June 11th centered in large part on

iielitls: dhe legislature should be apportioned: aceord-

to inhabitants.or, taxes.° John Rutledge of South’

Carolina (1 Farrand 196) :.

eee proposed that the proportion of suffi ne

in the Ast. branely shouid according to the

quotas ‘of contribution. - The. justice of - this

rule he said: could not be contested.

Pierce Butler of § Pith Carolina —— Rntlede(%s

proposal ‘(id. at 204) :

[MJjoney is strength; le every state’ oug it

-to have its weight in the’ national. couneil in

"6 New Hampshire stjll- apportions its Senate by taxes paid. |

The support foxy this proposition at the convention reflects the

belief that if." suthth by taxes as’ Well as by population wis

equitable, “since ‘the foriner constituted. the contribution of, the

States to the federal government. On the other hand, equal °

representation to all the States, regardless of inhabitants or”

contribution, .was considered by the supporters of Joist es

ment according to taxes to be unfair:

fad

-# 10

ates |

John Dickenson likewise (id. at 196) : |

~~ * * * eontended for the avtzal contributions of

the States as the rule of their oe

_ suffrage in the first branch.

Elbridge Gerry of Massachusetts opposed th

posal because he (td. at 201):

. eee thought property not the rule of repre-

_ ‘sentation.. Why then shd. the blacks, who were

~ sentation more than the cattle & horses, of the

‘North.

Benda: Franklin said that he ee that . (id. at.

= 197-198) :

ee the muumiber” of Dcicthintiiatons ‘should

bear some proportion to’ the number of the

Represented; “and that. the decisions shd. be

by the majority df members, not by the majori-

ty of States. This is objected to from an ap-

‘prehension that the greater States would then

swallow up the smallér * * *.

_- But, Sir,” in, the present mode. of voting -by.

States, it is ‘equalty in the power of the lesser

States to swallow up the greatér ete

pee June 14, the North? Carolina Sean, sii

‘to Goverpor Caswell, that the problem of the con-

vention was to form a ‘‘Union of Sovereign States;

preserving their~€ivil Liberties and connected. to-.

gether by such Tyes as to Preserve permanent &

effective Governments * * *. III Farrand 46.

' The New @ersey plan, was presented to the conven-

tion. ‘by Paterson on June 15. Its first sentence

. emphasized: ‘‘That a*union of the States merely

> federal ought to be the sole ‘Object of the Exercise

_ of the Powers vested in this Convention”’ IIT Far-

sceiasiiiiain to the quantity it possesses.

property in the South, be in the rule of repre-

“eg é 6

« . ° $ ; a 11 | 4 . :

rand 611.. AS to Congress, the plan proy ided (td. at OQ

G3) 5 =

Resolved That every State in the Union as a

State possesses an equal Right to, and Share

_ of, Sovereignty, Freedom, and Independance—-

Resolved, therefore, that the Representation

“in the supreme Legislature ought .to be by

States, otherwise some of the. States in the

Union will possess a greater Share of Sever-

eignty, Freedom, and Independence than oth-

ers. * * a! 2

The next day, Cisienns rare the basie assnmp- : :

tions of. the plan (I Farrand'250): :

oe a confederacy was radically wrong,

let us return to our States, and obtain larger .

powers, not assume them of ‘ourselves. * *-*—

CO Our: object is net such a Governmt. ds may be

| best in‘itself, but such a one as our Constit-

uents have authorized us to prepare, and as

they will approve. -If’we argue. the matter on

_ the supposition that no Confederacy at present

exists, it can not be denied that all the States

stand on the footing of equal sovereignty. * * *

If we argue on the fact that a federal compact

i actually exists, and consult the articles of it we

bag find an equal Sovereignty to be the-basis of

ape ‘He reads the 5th. art: of Confederation —

ow piving each State a ‘vote—€& the 13th. declar-

ing that no alteration shall be, madé witheut |

unazlimous consent. . -This is ‘the nature of all

_ ‘treaties. Dies atte

“Burning to the question of representation, he said

a (id. at 251) :.

- If the sovereignty of the States is to ‘be main-

tained, the: Représentatives must be drawn im-

mediately from-the States, not from the people: -

and we have no power to vary the idea of equal

sovereignty. :

be o

James Wilson replied strongly: (id. at 253-254)

He would not repeat the makes he had foxin-

erly made as the principles of Representation.

he would only [say] that an inequality in it,

has ever. been a poison contaminating: every

‘branch of Govt. In G. Britain where * this

_ poisen has-had a full operation, the security

of private rights is owing entirely to,the purity.

of her tribunals of Justice * * *. The political

liberty.of that Nation, owing to the inequality

of representation is at the merey of its rulers.

“Paterson then regponded (id. at 259):

FR Jepresentation: must be drawn frora_ the

states to maintain their independency, and not

from.the people composing those states. —

'The doctrine advaneed by a: learned gentl- .

-man from Pennsylvania [Wilson4, that all

_power is derived from the people, and that in

proportion to their numbers they ought to .°

participate equally i in the benefits and rights of

government, is right: in principle, but ‘unfor-.

tunatety for him, wrong in the application to

the question now in debate.

-. When independent societies confederate for

mutual defence, they do-so in their’ collective

capacity; and: then each state for those pur-

‘poses must be considered as. one of the contract-

Ing parties. Destroy this balance of equality,

and you endanger the rights of the lesser socie-

ties by the danger of usurpation in the greater.

"| Let us. test the government intended to -he

‘made by the Virginia plan on these principles.

whe. representatives in the national legislature.

. are to be'in proportion to the number of inhabi- -

tants in each state.. So far‘it is right upon the .

principles of equality, when. state distinctions

are done ‘away; but those to certain purposes |

still exist * * *.

In his notes, Rufus King shows how deiliis: Sevie-

ing representation by population based their argu-

a *

; “* +s

> : 8 13. ,

a- rae a

ment on ar kind of government which was to be con-

stituted. ‘ His notes’ state as to Robert Lansing of

‘New York, who favored giving equal reppesentation 7

to ‘all .the States (I Farrand 263-264) :

¥ .

Lansing

Natl. i eee.

[- &

One Br..to come from. ec come from. the

the people m propn..- State . Legislatures

part to yr. numbers . equally & to repre-—

+4 Rees sent the States

All acts-of ind. States To possess enumerated

‘subject to a national powers

Negative’:

* Will absorb the State

,Sovereignties & leave

, them mere Corpora-

tions, & Electors. of

the natl. Senate— ,

-Remarks—The confedn. admits the sovereign- :

ties of the States—it speaks of an Union—hut

it never meant a consolidation—If this ‘had

been in view NYk never wd. have sent ‘Dele-

ga * &.#

Similarly, King’s notes show . Wilson, who pro-

. posed apportionment by population (id. a 269-265):

Ww ilson—contrasts the

two— .

Nat. on Ped.

Legis. of 2 Brs.. - A ‘Congress or one Br.

ie ‘People are the_ ere Legislatures of

basis of Rep— : State

A -repn. according _T e ‘States are equal

Numbers or Wea

Ast Where the rine? of unequal Represtn.

prevails there exists a poison wh. eventually

will dexttoy it the Government—

s .

‘14

: Ga June e 18, 1787, ‘Alexander Sacniiten ' attacked the

New Jersey plen (1 Farrand 286) :

Another destructive ingredient in the [N ew

. Jersey] pian, is that equality of suffrage which.

is so much desired by the small States. It is

not in human nature that Va. & the large States

should consent to it, or if they did that they

shd. long abide by it. It shecks too much. the

ee of Justice, and every ‘human | feeling

v3,

He also submitted to the Committee of the Whole a ~

sketch of a plan for the new government.’ The plan —

' set the’ number of Representatives. at the start for

each State apparently on -the basis of population.

After that, the plan provided (IIT.id, at 620):

The Legislature shall provide for the future

_ élections of Representatives, apportioning them

. In each State, from time to time as nearly as

may be to the number of persons described in

the "46 of the VII article,“ so\as that the whole-

- number of. Representatives. shall never be less

than one hundred, nor more than hundred.

There shall be a Census taken for this purpose

within three years after the first meeting of the

Legislature, iM within, every successive period

of ten years...

The composition of the initial Senate was likewise

_ to be preseribed by the constitution but the number

for each State had not been filled i in. .As to the appor-

*This plan was never actually before. the convention. ITi

Farrand 617. . “= s

* Article VII, Section 4 of the plan provided for the appor-

‘tionment of direct taxes among the States by the number of

inhahjtants, except Indians not taxed and three-fifths of all

other persons. ITT Farrand 628.

™~

ee ara Ya : “15

- tionment’ of senators, Hamilton's ee provided (id.

at 621):

The Legislature shall spaviiie fo the future”

eléctions of Senators, for which purpose the .

States respectively, which have more than one

Senator, shall be divided into convenient. dis-

tricts to which the Senators shall be appor-

tioned. A State having but one Senator shall

be itself a district. * * *

The number of Senators shall never be less

_ than forty, nor shall any State,4f the same shall

not hereafter be. divided, ever have less than the

number allotted to it in the second section of |

this article; but the Legislature may increase.

‘the whole ‘umber of Senators, in the same pro- -

portion to the whole number of Representatives

_as forty is to one hundred; and such increase |

- beyond the present number, shall de appor-

tioned to. the respective Sfates in a ratio to the

respective numbers of their representatives.

If States shall be divided,’ or if a new <ar-

rangement of the boundaries of two. or “more

States shall take place, the Legislature’ shall

apportion the-nurnber of Sénators .(in elections

succeeding such’ division or new arrangement)

* to which the constituent parts. were entitled ac-_

cording to the change of situation, having re-

gard to the number of persons described 1 in: ‘the

4.§ of the VIT article. ©

Thus, the apportionment of the new “Senate was also

to be based on population, although no State could

- have its representation reduced from that preseribed

for the first Senate..

James . Madison returned to the proposal! of Fades

Brearly that the ‘boundaries of the States should- be

-_, redrawn to provide equal population and they, should

be given equal ‘representation in the legislature (T

. Farrand 321): Peg | ee

—

It was admitted by. poth the gentletnen from

'N. Jersey,- (Mr. Breatly and .Mr. Pater- _ |

« 706-STE—639—2- &

—"

* : . 7 te ; - .

bie Mh SAGA RCN LEE RLS CLV LELDABLLE SS GREE LSE BSED BLL LALLA

Re ys

“16 : mI . ; . F g-

_ son) 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 pro™

posed by them was that all the States shoulcd-be

_ thrown into one. mass and a, new pestition be

made into 13 equal parts.

Madison, howev er, i ided that the eg Was imprac- ee

. ticable (td, at 322): |

The prospeet of many new: States to , the. WwW est- ;

‘. ward was another consideration of importance.

‘If the ey should come into the Union at.-all, they

would’ come wheri they contained but but [sic]

few inhabitants. If they. shd. be entitled to

vote according to their proportions of imhabi-

tants, all would be right & safe. Let them have

an "equal vote, and a more objectionable mi-

- nority than ever might give law to the whoie.

- Alexander Martin of North Carolina said (id? at 324) :

2 A\,

[The States] entered into the confederation on

' the footing of equality; that they met now to to

[sic] amend it on the same footing, and that he

_ eould never accede to a plan that would intro-

duce an inequality and lay 10 States at the

mercy of Va. Massts. and Penna.’

On. June 20, the convention itself began to ae 5

the proposals which had been miade in committee.

Robert Lansing of New York responded to Wilson’s

citation (see p. 12 above) of the corruption resulting

from rotten boroughs in England (I Farrand 337) :

The. sec of Representation could receive no

_ elucidation from the case of England. The cor- |

- ruption of thé boroughs did not proceed from

their comparative smailness: but from the ac- .

tual fewness of the inhabitants, some of them

‘not having more than one or two. a great in-

. a x

| a eee

ea equality existed in the Counties of England.

‘Yet the like complaint of peculiar corruption .

~ in the small nes had not been made. - Sahay

Roger Sherman again repeated hjs proposal to have

‘to branches of the Jegislature apportioned differently _

(id. at 342-343): w 3 ae

The disparity of the States in point of size Fe

petceived was the. main. difficulty. But the. —

_ large. States’ had not.yet suffered’ from the |

* equality of votes énjoyed by the small ones.

In all great and general points, the interests of

alt the States were the same. * * * If the

difficulty on tkKé subject) of representation, can

not be otherwise got over, he would agreé to >

a have two ‘bran¢ltes, and a proportional repre- .

sentation in 6he of them, provided each State .

to had an“equtial voice ‘in the other. .This was

necessaty to secure the rights of the lesser.

States; otherwise three or four of the large

States would rule the others.as they please. -

The next day, William Samuel’ Johnson of ‘Connecti-*« *

cut noted that James Wilson. and the Virginians had

said that they did not want to abdlish the States (1

Ee Farrand 355) : cess

He wished’ it therefore: to ‘be well considered

whether in case the States, as .was proposed,

shd. retain:some portion of sovereignty at least,

. this portion could be preserved, without allow-

ing them to participate effectually in the Gen.

. Govt., without giving them each a distinct and

» equal vote for the purpose, of defending them-

st |

selves in the general Councils. 7 -

_. The debate as to representation continued on June -

' 25, 1787. Nathaniel Gorham of Massachusetts said

+ that (I Barrand Ma40: 5): : ?

“* *:* he inelined to a,compromist as te the rule ,

‘of proportion. He thought there was some. e

18 : oe

weight in the. dbbitieni of the emell States.

a. should have 16 votes & Delre. with sev- _

= mal other States together: 16. those from Virga. .

~“ would be mote likely to unite than the others, -

and would therefore have ‘an undue influence.

~ This remark was-applicable not, only to States, -

- but to Counties or other districts.of the same -

_ State. Accordingly the Constitution of Massts.

had provided that: the representatives. of the

larger districts should not be in an exact ratio ;

- to their riumbers.’ And experience he thought

had shewn the provision. to be expedient. -

- George Read of Delaware complained that the large

‘. States had appropriated the western . lands which

‘should have been applied to the public debt (id. at

405) :

be applied fairly & equally to the discharge of

- the general debt, and the sifaller States who’

had been injured would listen then perhaps

to those ideas of just representation which had

been held out. eae

James Wilson opposed election of the second nena

by the state legislatures (id. at 406) :

~The Genl..Govt. is not an assemblage of States,

_but -of .individuals for certain political pur- ;

_ poses—it ds not meant for*the States, but for

- the individuals composing them: the individuals

therefore not the States, ought to” be repre-.

sented in it: A proportion in this representa-_- :

tion. carn be preserved in the 2d. as welljas in

the 1st: Me koy and. the elecffon ean be made by —

electors chosen by the_people for that gurpose,

7 The Massachusetts | Constitetion . of 1780 @Povided that. the

Senate would be apportioned among the districts on the "basis

_ of taxes paid. Part IT, Ch. T, See. 2; Art. I. One member of

the House of Representatives was: appdrtioned to each town

having 450 voters and an additional member for-evéry 225 addi-

tional. voters, except that each existing town was Bien at least

one. Part IT, Ch. I, See. 8, Art. IT. .

Let justice be aes on this head ; let the. furia:

- He said (I Farrand 437-438) :

Ny However, his “amendment to ‘this effect: _Was not

seconded. ators 7%

. Pierce Butler of South Cintine ciesuael eve

the issue as to the election of second branch until the

question of representation was decided. James Madi-

‘son seconded. the proposal, but it was rejected 7 to 4. ..

I Farrand 407-408. The convention then voted 9 to 2

to have the second’ house elected by ‘the state legisla-

tures, with Virginia and Pemisylvania: opposing.’ At

- this point. in his notes Madison dropped | a footnote

(id. at.408): ‘i Sane ig”

It must be kept i in view 7 that the largest States.

“particularly. Pennsylvania & Virginia always

considered the choice of the 2d. Branch by the

State Legislatures as opposed.to a proportional

Representation to: which they were attached as

a mar reese principle of just Government. |

The smaller States who had opposite views, .

were reenforced. by the members from the large’ _

’ States most anxious to secure the importance

of the State Governments.

James Wilson of Pennsylvania likewise’ said at’ rele

convention (id. at 413):

Equality of’ representation | can not be ‘estab- ..

lished, if the second braneh Be lected by the —

s state legislatures. [ Yates] .

In the debate on June. 27th as to whether repre-_

" sentation in the first house should be by population,

‘Luther Martin of Maryland supported continuation

of the state governments as under the Confederation. :

“f[A]m equal vote in each State, was. essential

to the federal idea, and was ‘founded’ in justice

& freedom, not merely in policy: that tho’ the

States may gixe up this right. of sovereignty,

vet they had not, and ought not:-that the States

like. individuals ‘were in a: State’ of: nature

7: 4 at a $ 7 ' ¥. " ‘ ios ‘

ican ee ee fay sa teipes gs

. 20. err 3

: equally sovereign & free * **, {T]he States

: " equal cannot treat or confederate. ‘$0 as

“to give. up an equality of votes without giving

up their liberty: that the propositions on the

table were a system of ‘slavery for 10 States:: -

et that as Va. Masts. & Pa. have 42/90 of the’

° - votes they can do as they please without a

' miraculous Union of the other ‘ten: that they

will have nothing to do,- but to gain over one

' of the ten to make them compleat masters of .

the rest * * *: that no State in’ ratifying the

Confederation. had objected tothe equality of

- votes; that the complaints’ at present run not

agst. this equality but the want. ef power; that

* 16 members from Va. would be more likely te

aet in concert than a@ like number formed of

. Members. from different States; that instead

- of a junction of the smafl States asa remedy,

‘ he thought a division of the large States would

be more eligible.

Yates’ account of this same speech states (id. at 440- Pog

441): AD dee

-—*Phhis~ prineiple of. equality, ‘when applied ie

individuals, is lost in some degree, when he he-

a comes a member of a-society, to whieh it ‘is.

transferred; and this society, by the name of

state or kingdom is, with “respect “to others;

again on a perfect footing of equality—a right

to govern themselves as they please. “Nor can

“any other state, of right, deprive them of this

equality. If such a. state confederates, it is

‘Intended for the good of. the whole; and if ‘it

agains confederate, those, rights must be well

+ guarded * * *. .We must treat as free states

= with each other, upon the same terms of equal-

ity that men originally formed themselv eS. into

socicties.

# 4 5 ‘es * ' ae

_ If the foundation 6f the existing confederation

is well laid, powers may be added—Yoy may

safely add a | third story toa house where the

The next day, Luther Martiti contimied his > Speech

an g ee

foundation is’ good * * Price says, that

laws made by one man .or a set of men, and

not by common consent, is pyew give it is se

when applied to states; if vou give t

unequal representation. '

x I Farrand 444-445) :.

. [T]he Genl. Govt. ought to be Seanad for

* thing whether their (represéntatives) were

Yates

‘' “¢* * * Representation on federal principles |

the States, not for ‘individuals: that if the

“States were to have votes: in proportion to

em an ©

their numbers of people, it ‘would be the same |

chosen ‘by the Legislatures or the people; the

smaller States would be equally enslaved * * ™.

reports as to this speech (id. at 453-455) : |

' In a Federal governnient, a-majority of states

must ard ought to tax. In-the local govern-

ment of states, counties. may be tinequal—still

numbers, not property; ° govern. © What is.

the government now forming over states

or persons? As té-. the ‘latter, their rights

cannot be the object of a‘‘general _govern-

ment—These are.-already se@ured’ by their _

guardians, the state governments. The general. .

government is them@fore intended only to<pro-

tect and ‘guard the rights of the states as states.

can only flow from state societies * * *,

* * * Your general government cannot: be

just or equal upon the Virginia plan, unless.

~you. abolish state interests. If this cannot be

done, you must go’ back to principles: purely - my

federal. . °

yon: ae *. ne hk - *' *

The admission of the firger states: inta the

confederation, on the. principles of equality,

is dangerons—But on the Virginia system, it. .—

‘is ruimous. and destructive. Still it is the true

- interest of ail. the. states to confederate *

* ; * * 9 * *

”

‘ & ; v 22. >

eer I would rather cokfederate with | single

lars state, than }ubmit to the Virginia pian. But

-.° , we are alrégdy confederated, and no- power on

“earth ean dissolve it but by the consent of all

- the’ contracting powers—and four states; on

es this floor, have already declared, their opposi-

gas eae tion to annihilate it pias

James Madison, in opposing the motion see Laiising at

that “the représentation of the first branch be accord-

ing to tie articles, of the confederation” [Yates] (1

"Farrand 455), said that (id. at 44{}-449) : .

od [H]e. was much disposed to concur in. any ex-

- - pedient not inconsistent’ with fundamental

. principles, that could remove the difficulty con-

cerning: the- rule or representation.__But. he

could neither be convinced that the rule ¢on-

ceeded by MY. Breerly [sie] & Mr. Patterson

Tsie] themselves.” The expedient proposed “by

them. was a new partition of ‘the 4erritory’ of |

the U. States. The fallacy of: fie reasoning 4

° drawn from .the. equality of Sovereign States

= in the formation of compacts, lay in confound-

ing mere Treaties, in’: which were specified cer-

tain dutiés to which the. parties were to be

bound, and‘certain rules by which their subjécts -

were to be reciprovally governed: in their intér-

»’ . eourse, with 4 ompact 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 sover-

eigns of: Europe; they. would. not hesitate to

treat as equals, and to make the regulatioris

‘perfectly. reciprocal. Wad. the ‘esee be the same

if a Council were to be formed «of deputies

-from each with authority, ,, and. discretion, to :

tended for was just, nor necessary for the’ |

safety of . the small ‘States agst. ‘the large

_ States. That it, was not just; had been con-'

: ° a , 3 : &

ag Wigs

.° faise 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 propertion to their numbers? Is it because

the represéntatives are chosen by the people

themselves? ‘so’ will be the representatives in

the Nation]. Legislature. Is it beeause, the

larger have more at stake than the snialler ?

The casé will be the same with the Jarger. &

sma aller States. Is it because the laws are to. -

| operate imniediately on their persons & prop-

erties? The same is the ease in some degree

cas the articles of confederation stand; the séfne

will be the ease in a far greater degree under °

the plan proposed to be substituted..* * * By

the plan proposed a compleat power .of taxa-

tion, the highest prerogative of supremacy is. .~

proposed to be vested in the National Govt.

pe Many other powers are added which assimilate.

‘it to thé Govt. of individual States. The nega-

—

_ tive on’ the State_laws proposed, will make .it’

an essential- branch of the State Legislatures -

& of course will require that it should be exer- -

cized by a body established on like principles

with. the other branches of those Legisla-

wee, eee =

* * ee ee

* * * Ina word; the two extremes before us |

are a perfect separation & a perfect ineorpora-

tion,, of the 13 States. -In the first ease they

w ould be independent nations subject to no. law.

but the law of nations. Tn the last, they would -

be mere counties of one entire’ republic, subject

to. one common law. In the first case ey

smaller states would have everv thing to fear |

from the larger. Tn the last. they would have’

.s = o

eee -

nothing to fear. ‘The t true oe of the small

- States therefore lies in promoting’ these prin-

ciples & that form of Govt. which will most ap-_

proximate the _Btates to the condition of

‘ Counties.

7) ee reports. that Madison said (id. at 457):

There is danger i in the idea of the*gentleman

from Connecticut: Unjust representation will

ever produce it. In the United Netherianis, |

Holland governs the whole, although she. has .

only one vote. The counties - in Virginia are

exceedingly. disproportionate, and -yet -the

‘smaller hasan equal vote with the —

and no inconvenience arises."

Returning to the ‘analogy of England’s. rotten

prt ps James Wilson said (I Farrand 449-450) :

- The- -leading argument of those who contend "

‘ie equality of votes.among the States‘is thaf*

the States as such being equal, and being repre-

sented wot as: districts of individuals, but in

their political & corporate capacities, are en-

titled to .n equality of suffrage. According to

this mode of reasoning the representation of

the burroughs in Engld which has been allowed

on all hands to be the rotten part of the Con-

stitution, is perfectly right & proper. They are

like the States represented in their corporate

° * ‘capacity tike the States therefore-they are en-

“titled to equal voices, old’ Sarum [a rotten bor--

ough} to as many as ‘London. And instead of - .

the injury supposed hitherto to be dene to Lon-

don, the true grand of complaint | lies with old

° The last sentence,, supporting representation on a*non-

population basis,’ seems almost surely dn error of the reparter.

It is inconsistent with the first two sentences of the same ac-

count, as well as with numerous other statements. made by |

Madison at the-cenvention. Furthermore, it is:not reflected in

° _-Madison’s own detailed and presumably | more accurate account

- of his speech wh: gh is quoted in the text above.

Mes

Sarum; for London instead of two which is her

i proper share, sends four He kage naire to

Parliament. ~

Yates says that Wilson stated (id. at 457) :

I should be glad to hear the bontleman from |

Maryland explain himself upon the remark of

Old Sarum, when compared ‘with’ the city of . -

‘Loridon. This’ he «has eared to be an unjust

proportion; as‘in the one place one man sends |

- two members, and in_the. other one million are

represented by. four members... I would be glad

to hear how he applies this to the larger and

smaller states in America; and whether the

borough; as a,borough, is represented, or the

people of the borough.

Luther Martin ‘answered that Britain’s sillien bor-

. onghs.were not analogous sinve ( ibid.) ):

Individuals, as composing a part of the whole

of one consolidated government, are there rep-

resented.. [Yates]

ie Roger Sherman argued for concessions by the larger :

State to protect the smal er. Id. at 450., He further

stated (id. at 457): ; |

‘In society, the poer are eQual to the rich in

voting, although one pays more. than’ the other.

This arises from an equal distribution of lib- ,

erty amongst all ranks; and it is, on the same

or ounds, secured ‘to the states in the oumtodsea-

tion *.*°*, [Yates]

Hugh Williamson of North Carolina supported. rep-

a ei aera based on population on the ground (id. at

456} :

If any argument’ Wiil admit of demonstration,

it is that which. declares, that all men have ai

equal right in society. Against this position, J

have heard, as yet, no argument, and | could

wish to het what eould be said against it * * *,

[Yates]

ge Roy per RTL RCN ae

. eager " G oe =

(RAS ECR ERS Oe IGOR.

On Juné 29th, William Samuet Johnson of Connec-

ticut .supported Roger Sherman’s proposal. that’ one .

luuse be apportionéd on. population and the ether be

. apportioned equally among the States. In doing so,

he explicitly based this pro l on a compromise as

to the nature of the. new government (I Farrand 461—"

462):

The AAPL Sr must be endless whilst Gen

tlemen differ in. the grounds of their argu-

ments; Those on one side considering the States

as districts of people composing one political

Society; those on the other considering them as.

so many political societies. -The fact.is that

the States do exist as political Societies, and a

Govt. is to be formed for them in their political

capacity, as well as for the individuals compos-

- Ing them: * * * On the whole he thought that

--as in some. respects the States are to be eon-

sidered in their political capacity, and in others.

- as districts of individual citizens, the two ideas*”

embraced‘on different sides, instead of being ~

opposed to—each other ought to be combined ;

‘that in one branch the people, ought to be rep-

resented; in the other, the States.’

Rufus King’s account of this speech is ‘Ud: -at A16-

‘ at):

Those who contend for an equality of ae

amgng the Statesy define a State to be a mere

association of men & then say ‘these Associa-

tions are equak—on the other-hand those who ¢

contend for a Representation in proportion to.

-numbérs, Define a State to be a District of

Country with a certain Number of Inhabitants,

like’a parish or County, and then say, these

districts. shd. have an influence in. propertion

to their Number of Inhabitants both - reason

justly from yr. premises— we must then com-

promise—let. both parties be gratified—let one

Hause or Branch be formed by one Rale & &

“fsie} the other by another.

, apg oS

Madina continued ‘to oppose the comipromise be-

_-eause it over-emphasized the sovereignty of the States -

2 under the new Constitution and because equal repre-—

. , sentation by States was unjust (I Farrand 463-464) «

[T]he mixed nature of. the Govt. ought to be

kept in view; but thought too much ‘stress was

. Taid on the rank of the States as. political so-

_ cieties. (There was a gradation, ‘he observed

sie from the smallest \eorpordtion, 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 * *°*. Under the proposed

Govt. the posers of the States will be much

farther redyeed. According to the views 6f

every member, the Genl. Govt. will have powers

far beyond those exercised by the -British

_ Parliament ywhen-the States wére part of the

‘British Empire. It will in particular have the

' power, without the consent of the State Legis:

latures, 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 sub-

ject the ‘systemcto the reproaches & evils which

’ have . resulted from the vicious representation

in GB. - -

He entreated the gentlemen representing the

small States to renounce*a. principle weh. was

confessedly unjust, which ed. never be admitted.

& if admitted must infuse mortality info a’

Constitution which we wished to last forever.

| Yates reports eoneerning this speech that Madison

said (id. at 472):

_.If the power is. not immediately derived from

‘the people, if proportion to ‘their numbers we os

may make 4 paper confederacy, but that wit

Pty all. |

seansancinrars LOLOL IAL GROEN ERT meets ci i RRR dE Ra

28 e

Alexander Hamilton likewise supported apportion- i

ment based solely en population (I Farrand. 465-466) :

Mr. Hamilton observed that individuals form-

ing political Societies modify their rights dit-

_ ferently, with regard to suffrage. Examples of

it are found in all the States. In all of them

some individuals are deprived of the right alto-

' gether, not having the requisite qualification

of property. * * * In like manner States may

modify their right of suffrage differently, the

larger exercising a larger, the smaller a amaller

share of it. But as States are a collection of

individual men which ought we to respect most,

the rights of the people composing them, or of

_- , the artificial beings resulting from the composi-

tion. Nothing could be more preposterous or

- absurd than. to sacrifice the former to the latter.

It has been sd. that if the smaller -States re-.

_ hounce their equality, they renounce at the same.

time their liberty. The truth is it is 4 contest

-for-power, not for liberty. Will the men com-

posing the small. States be less free than. thos¢

composing the larger. The State of Delaware

having 40,000 souls. will lose power, if she has

Yo only ‘of the votes allowed to Pa. having

_ +400,000: but will the people of Del: be less free,

if each’ citizen has an equal vote with each

citizen of Pa. He admitted that common resi-

dence. within the same State would produce a

eertain degree of attachment; and that this _

‘principle wae have a certain influence in pub-

le affairs. thought however that this might

by some. precautions_be in # great measure ex-—-----~

cluded: and. that no maternal. inconvenience

could result from it, as there could not be any .

ground for combination among the States whose

influence was most dreaded. * *-* No. consid-

erable inconvenience had been found from the

we eee Se ee as

AI KLOET

’

division of-the State of N. York into. different

_ | distrietsAof different sizes.’* :

Yates gives this account of Hamilton’s speech (id. at

473) : ie

sacrifice individual rights to the preservation

of the rightS-of an artificial being, called states?

The question, after all is, is it our inter-

est’ in medifying this .general.government to. |

There can be no truer princ!ple: than this—~*

that every. individual of the eoiuniunity at large

has an equal right to the protection of govern-

* ment.’ If therefore three states contain. a-ma- »

jority of the inhabitants of America, ought they

to ‘be governed -by a minority? * * * [The

larger States] are to surrender their rights—

Se for what? for the preservation of an artificial

being. We propose a free government-—Can

it .be so if ‘partial distinctions ave. main-

tained? * * * In the state ef New Yprk, five. ~

counties from a majority of represfntatives,

and. yet the government is in no dakger, be- -

cause the laws have a general operation. The |

small states exaggerate their danger; atid on

. this ground coritend for an undue proportion .

of power, » °

‘Elbridge Gerry of: Massachusetts also agreed with —

‘Madison (I Farrand 467) :

[Wle never were independent States, were not |

such now, & never could be even on the prin-

_ ciples of the Confederation... The States & the -

-- advocates for them were intoxicated with the

~——~«tea- of their sovereignty. He was a member

of Congress at thé~time~the federal articles

were formed.. The injustice of allowing. each '

1! Both houses of the New York legislature were then appor-

Sioned on the basis of eligible voters. New York Constitution

_ of 1777, Articles 4, 12., i, Po

“7

: "se ane 30

. State an n, equal vote was long insisted on. He

voted for it, but it wes agst. his Judgment, and

under the pressure of »public danger, and. the

obstinacy of the lesser States.

‘ Luther Martin replied to Gerry that (id. at 468) :.

[T]he language of -the States being Sovereign

& independent, was once familiar & ‘under-

stood; though it Seemed ‘now so strange & ob-

secure. He read those passages in the articles

of ‘Confederation ' which deqgribe them in that

language.

The convention rejected the motion of Robert Lans-,

‘ing to have the first branch elected on same basis as’

the Congress’ of the Confederation, é.e., equal repre-

sentation by States, by a vote of 6 to 4 with one State

‘divided. By the converse vote, the conve ation adopted

the resolution reported by the Committee of the Whole

“that the rule of suffrage in the Ist branch ought

- not to be according to that establishete by the Articles

: of Confederation.”’ — (I Farrand 468.) Oliver Ells-

worth: of Connecticut then again proposed the com-

promise first suggested by Sherman (id. at 468-469)q

* * * that the rule of suffrage in the 2d. branch,

be the.same with that established by the articles -

_ of confederation’. He ‘was not’ sorry on the

whole he said that the vote just passed, had >

determined agairist this rule in the first branch’

-He hoped it would become,a ground of com-

_ promise with regard to the 2d. branch. We-

were partly national; partly federal. The pro-

portional representation in the first branch was:

’ conformable to the national principle &: would.’

secure the large States agst. the small. An

equality of voites: was conformable to the fed-

eral principle and was necesary to secure the

Small States agst. the large. He trusted that

on this middle ground a compromise would take:

place: He did not see that it could on any

~~ 3l es

Ey : 2 3 ae

other. * * * The ‘existing confederation was

founded on’ the equality of the. States in the

article .of ‘suffrage: was it. meant to pay no

regard to this. antecedent plizhted faith.

Abraham Baldwin of Georgia opposed Ellsworth’s

‘motion on the ground that tlie second house: should:

represent property. (Id. at 469-470.) - George Read

of Delaware agreed in part with Madison and Hamilton

(id. at 471) : | eR es

If [the government was to be] more national, /

‘@ would be for a representation ‘proportionate

0 population. [Yates] he

James Wilson, on June 30th, strongly opposed Ells-

worth’s iotion to allow each State an equal vote in

the second branch. He rejected threats that eonven-

tion would otherwise’ fail (1 Farrand 482-484) :

“* " Tf the minority of the people of America refuse

to coalesce with the majority on just and proper -

principles, if a separation must take place,” it

could never happen on better grounds. The

votes of yesterday agst. the, just principle of

representation, were as 22 to 90 of the people of

America. Peking the opinions to be the same

on this point, * * * ‘the question will be shall’

less than '4 of the U. States withdraw them-

selves from the Union, or shall-more than 4

“renounce the inherent, indisputable, and wn-

alienabie rights of ten, in favor of the artificial

aX systems ‘of States. If issue must be joined; it

was on this point he Would chuse to join it.

The. gentleman from Corinecticut [Ellsworth ]

in supposing that the prepondenancy secured ‘to -

the majority in the Ist. branch had removed

the objections to an equality of votes in the 2d.

branch for the security of the minority nar-

rowed the, case extremely. Such an equality

will enable the minority to eontreui in all Cases

whatsoever, the sentiments and interests of the

706-578—63——-8

- Q

32:

* majority:. Seven States will ‘controul Six: seven

States according’ to the estimates that had been

“used, composed’ # Yoo, Mf the whole people, It.

.* would be in the powér. of less than’ 14 to’ over-

rule 34-whenever. a question should happen to

divide ‘the States in that manner. Can we’ for-

get for whom we are forming a Government?

“Is it for men, or for the imaginary beings called °

: States? Will our honest Constituents be satis-’ -

fied with metaphysical distinctions? Will they,

ought the vé to be: Satisfied with being told that

one thir

principle to be the same in the 2d. as in th

_ branch. .* * * Ef the motion should be seniall t to,

we shall Jeave the U.S. fettered precisely as

heretofore; ‘with the addition’! “ditification of.

seeing the good purposes of. ve fair representa-

tion of ‘the people in the Ist. branch, defeated

in 2d. ‘Twenty four will still controul sixty Six.

Ellsworth replied that (id. at 484-485) :

ou 4

"The capital objection of Mr. Wilson “that. the

myjnority will ule the majority” is not true.., .

*.The power is given to.the few to save them:

from. being destroyed by. the many. If an.

equality of votes had been given to them in both

bzanches, the objection might-have had weight.

“ No. instance [of a confederacy] has

_ existed in which an-equality of voices has not

* been exercised by the members .of it. We’ are

- running ftom one extreme to another. We are

razing the foundations of the building. When

we need only repair the roof. No salutary -

‘measure. has been lost for want of a majority

of the’,Statés, to favor it. If security be all

fhat the. great States wish for the Ist. branch -

;, Secures them. * * * He appealed again to. the

2 Farrand has taken this phrase from the account of Yates.

I Farrand 484, note 5.

compose the greater number of -

States. The rile of suffrage ought on. ae od ae

ene z) :

‘obligations. of the ‘federal pact which was still

in force, and which had been entered into with

-go niuch solemnity, persuading himself . that’

7 some regard would still be paid to the plighted ~_—

fe ® faith under, which each State small .as well. ats

great, held‘ an_ equal right of suffrage in the

General Councils. ; ioe

Supporting Wilson, Madison said that speakers had

urged (id. at 486) : ye ender thee

* * * continually that an equality ‘of votes in the

2d. branch was not only necessary to secure the

- gmalk, but would. be perfectly safe to the large

ones whose majority in the Ist. branch was an:

effectual bulwark. But notwithstanding this .

apparent defence, the. Majority of States might

still injure the majority of people. 1. they

e —-.. -eould obstruct the wishes and interests of the.

: majority. -2. they could extort measures, re-’

pugnant to the wishes & ‘interest of the ma-

jority. 3. They could ‘impose measures: ad-

verse thereto; asthe, 2d branch - wilt probly

exercise soine great powers, in which the Ist

will not participate. . : Ye | eee

_, + » William - Richardson Davie of North: Carolina - —

agreed with Elisworth, opposing the resolution ap-

proved by the Committee of the Whole (I. Farrand

5 487-488) : i ) Bs oa FS

The Report’ of the Committee allowing the Leg-

islatures to choose the Senate, and establishing

a proportiona! representation in it, seemed to

be impracticable. There will according to this .

rule be ninety: members in the outset, and the

number will increase as new States gre added. |

It was impossible that so numerous .a body

could possess the activity and other ‘qualities

_ required in it. * * *_ [I]f a proportional rep-

resentation was attended with insuperable dif-

_ ficulties, the making the Senate the Representa-

_ tiveof the States, jooked like bringing us back

to Cones. again, and shutting out all the adyear

’

—

OA <_

‘ees expected from ed os - ‘He thought that

. in-géneral there were extremes on both sides. *-

We were. partly federal,. partly national in our

Union. A’nd he. did not see why the Govt. .

- might pot in some respects operate on the

- States, in others on the people, . ie

Attempting to meet Davie’s objection, Wilson (id. cat

488) : ; :

Be (Dc admitted the question concerning the

‘number of Senators, to be embarrassing. If

-. * the smallest States be allowed one, and the .

y’ * Others. in proportion, the Senate will certainly

. be too numerous. He looked. forward to tlie

- ‘time. when the smallest States will contain

100,000: souls’ at least. Let there .be then one ~

Senator wi each for every 100,000 soils, and

let the States ‘not having that no. of inhabitants ‘

be. allowed :one. He was willing himself to

Submit to .this temporary ‘concession. to the . .

‘small States:- and threw out the idea as a

ground of. compromise.

Benjamin Frarklin’ theti. summarised the ‘icici .

(I Farr and 488) : ; i

The diversity of “opinions turns on two

- - points. If a proportional representation takes

place, the small. States contend that their. liber-

- ties wifl- be.in danger... .If an equality of votes

* . is to be put Grits place, the large States say’

. their mon will be in danger. Whet a,broad

‘table is tobe made, and the edyes of planks do.

- not fit the artist takes: a. little from both, and

makes a géod joint. Tn like’manner here both

_ sides must. part with some of their demands, in‘

order that - they may join in some spcommodat-

- ing proposition. x

To.resolve the impasse,ohe proposed, the following

_resolution (id. at 489) : Fs.

That the Legislatures. of the debit States

shall choose & send an. equal number of Dele-

“

685

‘gates, namely who are to compose the 2d. branch

‘of the General Legislature—. . i Ae

However, while the resolution also gave each ‘State,

an equal voice on several important. issues invelying

. the States sueh as issues affecting their sovereignty,

voting strength was to be valenlated’ by taxes paid

with ‘regard .to appropriations bills. Benjamin,

. Franklin explained that,(¢d. at 499): :

Let the senate be elected by the states equally—

int all acts of ‘sovereignty and authority, Jet tlie

votes be equally taken—the ‘same in the appoint-

merit of all officers, and salaries; but in passing»

\ of laws, each state shall have a right of suffrage.

\ in proportion to the sums they. respectively con-

,... tribute. | [Yates]

- Rufus King. ye) ‘ted’ all proposals for giving ‘each

State an equal, vite and said that he was ¢1 Farrand

489-490): erty ge me

“°\ filled with astonishment ‘that if we were con-

| vineed that every mon in América was ageured

) in all his rights, we should be ready to sacrifice

this substantial good to the phantom of: State.

"sovereignty :. ** * that he could not therefore

- "but repeat his amazement that when a just

Governt. founded on a fair representation of

the people of Ameri¢a was within our reach,

we should renouncé the blessing, from an at-

tachment té the ideal freedom & importance of

States: that ‘should this wonderful illusion con-

- tinue. to -prevail, his mind was prepared . for

every event, rather than sit down under a Govt.

founded in a vicious principle of , representa-

tion and which must be as shortlived as it

would be unjust. He might prevail on himself

to accede to some such expedient as had been

hinted by Mr. Wilson: but he never could listen

to an equality of votes At proposed in. the.

motion. , . o

purity t

[There was no viding way betwen: a perfeet

_ consolidation and a mere~confederacy of: the

States. The first’is out of ‘the question, and

. in the latter they must.continue if not per-

fectly,’ yet equally sovereign. * * *. Look at G.—

_. Britain. Is the Representation there less un-

equal? But we shall be told again that that is

the rotten part.of the Constitution.. Have not ~

the boroughs however held fast their constitu-

tional rights’ and are .we to.act with greater

the rest of m d... An exact

proportion in the Representation is not pre-

' served in any‘one of ‘the. States. Will it be:

said that an inequality of power will not re-

sult from an inequality of votes... Give: the

opportunity, and.ambition will not fail’ to

abuse it. * * * The little States are willing to

observe their engagements, but will meet the

large ones on no- ground but that of athe -

Confederation.

; Yates says that Bedford ‘stated’ (id? at 501-502) :

Let us then do what is in our a adadiend

and enlarge the Conféderation but not alter the

Fr ietal. system. [Emphasis in original.].

On July Ist, Geprge Washington, the ‘chairthaii of —

the convention, wrote. David Stuart that (III Far- -

rand 51):

the primary cause of all our disorders lies in ©

the different Sfate Governments, and in the

* tenacity of that power which. pervades the

whole $f their’ systems. Whilst independent’ ,

savereignty is so ardently contended for, whilst

the local views of each State and seperate ‘in-

terests’ by which they aré too much govern ‘d

e° . 37 . ’ fone a

- will . not yidld. to a more enlarged scale of.

_ ‘politicks * * *.- os: nieier nee

i ee convention voted on July 2, 1787, 5 to 5, with

“one. State divided, on: Elsworth’s motion to give each

/~ State one vote in the Senate. Connecticut; New York,

~ New Jersey, Delaware, and Maryland voted. for the

gesolution and Georgia was;divided. . I Farrand 510.

While he said that ‘Te]quality of suffrage in the -

-atates is wrong”” [Yates] (id. at 518), Charles Cote- -

worth Pinckney of South Carolina proposed that a

— committee he: appointed: .of one ‘member from‘ each -—

State to devise a compromise: Luther Martin did not

ohject but warned that ‘no modifications whatever

. vould reconcile the Smaller States to,the least diminu-

* tion of their equal Sovereignty."” Id. at 611. EI-

bridge Gerry, who favored the population basis of ap-

portionment, supported the*rommittee because ‘*[w]le >

> must make concessions on both sides.” Id. at 515.

* The convention approved the creation of the ‘commit-.

tee 9 States to2. | : ae

-On July 2, Phineas Bond wrote Lord’ Carmarthen

that the problem was (IIT id. at 52-53) :

* * * to form such a federal constitution, as |

will give energy and consequence to the union.

Whether this is to be done, by improving the

old governments gr by substituting new ones—

_.. |S. whether by continuing a power in each State

eee to regulate its internal policy, or to abolish all .

7 IROCB separate establishments, and to form one grand

‘ - . federal authority, is a matter of consideration

- " hich creates much doubt and animadversion. |

Yates gives ‘the following account of the meeting

' -of the newly formed Committee on Representation in

the Legislature on July 3d (I Farrand 522): - |

- Many of the members, impressed. with the util-

ity of a general government, connected with it

> myeroe tage: Be je LEE I ass

the indispensible necessity of a representation

from the states according to their numbers anid

wealth; while others, equally tenacious of.the .

rights’ of the states, ‘would admit of no other

representation but-such as was strictly federal,

or in other words, equality, of suffrage. -

The committee agreed to a motion. by Benjamin

=.Franklin providing that one representative shall .be

apportiorted |i in the first branch for each 40,000 people |

with a minimum of one for each State; that all bills

for raising or apportioning money must arise in, that

house and may not be amended by the second branch;

‘and that-eath State shail have an equal vote in the |

-" seeond hopse. Id. at 523. .

- On Jul}fdth, the convention debated the committee’s

sient “Madison continued. te oppose any. compro-

mise. deviating from ‘apportionment based on pore

_ lation (1 Farrand $9¥-528) :

» . He conceived that the Convention was sodnued 3

to the alternative of either departing from jus

tice in order to conciliate tke smaller States,:

and the minority of the people of the U.S. or of - :

displeasing these by justly gratifying the larger

States and the majority of the ‘people. He |

could fot himself hesitate as to the option he

ought to make. The Conventiomwith justice &

the majority of the people on their side, had

nothing to fear. With injustice and the minor-

_ ity on their side they had every thing to fear.

It was in vain to purchase.concord in the Con-

vention on:terms. which would perpetuate dis-

cord among their Constituents. ‘The Conven-

tion ought’to pursue a plan which would -bear

the test of examination, whielt would be es-

poused & supported by the enlightened and

impartial part of America, & which they could

themselv es vindicate &€ urge.

‘ : :

pi St Ae ONG NY. COOLS POOR

Yates’ report of this’speech states | :

We are driven to an, unhap} y dilepima. Two

thirds of the inhabitants .of the union are to’

_ their essential rights. —. Gh) Oe jake

Pierce Butler of South Carolina’ agreed that (id. at

529) : ;

* * * he could not let down his idea of the peo-

_ ple. of America so far as to believe they, would

.- from mere respect to. the Convention adopt a ~

plan evidently unjust. * * * He urged that the

2d. branch ought to represent the States ac-

-eording to their property. Sa

In contrast, Elbridge Gerry supported the eompro-

mise .(id. at 532):

We were however-in a peculiar situation. We

were neither the: same Nation nor. different

Nations. We ought not therefore to pursue the

one or the other 6f these ideas too closely. If

no compromise should take place what will be

the eonsequence. A secession he foresaw would

_ take place; for some, gentlemen seem decided

~ on it; two different plans will be proposed, and

thgpresult no man could foresee. If we do not °

come to some agreement among surselves some

foreign sword will probably do the work for us.

George Mason likewise,said that (#d. at 533) :

; There must be some accomodation on this point,

. or we shali make'little further progress in the

work. - Accomodation, was the object of the

House in the appointment of the. Committee ;

and of the Committee in the Report they had

made. And however liable the Report might

be to objections, he thought it preferable to an.

- appeal to the world by the different sides, as

had been talked of by some Gentlemen. — .

40 ‘

» ‘The convention then turned jn particular to the first

- clause of: the ‘resolution which stated that one repre-

_ sentative shall be apportioned to every 40,000 people.

Gouverneur Morris of Pennsylvania objected to this

provision both because it was based on populatior

rather than wealth and beéause the Atlantic Coast

* states could be out-voted in the future (I Farrand.

- acath apc! SE EE 4 ‘he's

He thought property ought to be taken into the

estimate as well as the number of. inhabitants. ,

Life and liberty were generally said to be of

more value, than property. An accurate view |

ot the matter would nevertheless prove that

"ae ke tad was the main object of Soeiety. * * *

e thought the rule of representation ought to . .

‘be se fixed as to’ secure to the Atlantic States .a

prevalence in the National Councils. The new-

:, States will know less of the public interest than

these, will have an interest in many ‘respects’

different, in particular will be little scrupulous

“of involving the Community -in wars the bur-

dens & operations of which would fall chiefly

on the maritime States.. Provision ought there-

fore te be made to prevent the maritime States’: |

from -being hereafter outvotéd by them. ‘He

thought this might be. easily done by irkevo-

eably fixing the number of representatives |

which the Atlantic’ States shezld respectively

have. and the number which each new State will

have. This wd. not be unjust, as the western

» settlers wd. previously know the conditions on

whieh they were to possess their lands.“

_ Agreeing, John Rutledge of South Carolina said that

(id. at 534): tie 2

. The gentleman ‘last up had spoken some of

his sentiments precisely. Property was cer-

' ‘The fear that the western States would ultimately control

the legislature was expressed repeatedly during the convention

but no limit was ultimately placed on the representation of new

States in either, house. :

ht -

NAA he roe

saintly the principal object of Society. it num-

bers should be made the (rule of representa-

_ tion, the Atlantic States will be Subjected to the

Western. He moved that the first -proposition

in the report be postponed in. order to take up

_ the following viz. “that the suffrages of the sev-

eral States be regulated and proportioned ac-

cording to the sums to be paid towards the gen-

eral. thera by the inhabitants of each State

vely

Rutledge’s motion was rejected with only ‘South Gar-

‘olina supporting it.

On July.-6th. Gouverneur Morris (1 Farrand 540):

. eae weirs moved to commit [back to the commit-

ee] so much of the Report as relates to ‘1

member, for every: 40,000 inhabitants’: | His

view wak that they might: absolutely fix ‘the

number for each State in me first instance;

' leaving the Legislature at ne y-to provide for

changes in the relative importance of the’ States, ;

- _ and for the ease of new States.

“This view was opposed by ‘Nathaniel Gorham of Mas-

* sac husetts 1 who (ibid,) :.

* * * apprehended ‘great ine onvenieney from °

fixing directly the number of Representatives

to be allowed to each State. He thought the

number of Inhabitants the, true guide; tho’

perhaps some departure might be- expedient

from the full proportion. .

13 iaridips asey (id. at 5AL): @

* *-* favored .the Commitment and: thought

that Representation ewght te be in the Com-

bined ratio of numbers of Inhabitants and of

> Wealth, and not of either singly...

Agreeing. with Gorham “that the Ratio of Represen-

tation proposed evuld not‘ be safely fixed, since ‘in a

-eentury « a half our computed increase of assem

ec.

would carry the number of representatives to an’ enor-

mous excess,’’ Rufus King said that wealth not popu- _

. lation should be the basis of Spportonmanat (I Far- - —

ct rand 541):

bake oe ye. number - inhabitants was not the

proper index of ability & wealth; that prop-

- . erty was the primary object of Society; and

' that in fixing a ratio this ought not tobe ex-

cluded from the estimate. With regard to New

. . States, he observed ‘that there was something .

peculiar in the business which had not been

noticed. The U.S. were now. admitted to be

proprietors of the Country, N. West of. the

- Ohio. _Congs, by one of. their ‘ordinances have

impolitiely laid it outeinto ten States, and have

"made it a fundamental article of compact with

those who may become settlers, that as soon as

the number in any one State shall equal that of

the smallest of the 13 original States, it may

claim admission into the Union: Delaware does

. not centain it is computed mere than 35,000

_ soul, and for obvious reasons will not increase

much for a considerable time. It is possible

then ‘that. if this plan be, persisted in by Congs.

10 new votes may be added, without a greater

addition of inhabitants than are represented by

the single vote of Pena.

“Pierce Butler of ‘South Carolina aleo supported

= as the proper standard (id. at 541-542) :

- He was persuaded that the more the subject

was examined, the less it would appear that ,

‘the number of inhabitants would be-a proper

rule of proportion.. If there were no other

objection the changeableness of the: standard

would be sufficient. He concurred with those

who thought some balance was necessary be-

‘* —. tweerr the. old & New States. He contended

strenuously ‘that property was the only just

measure of representation. This was the great —

‘object of Governt: the great cause‘of war, the

great means of carrying iton. —

‘Reem ata naehtings’ «

EE et bead, be the! fe iat = -

SBT Rvs ORT he STR a OR CET ad arose ‘ :

: . e

& \ a f 6

On ‘thes other hand, Charles Pinekney. (id. at. 3

* * * saw no good reason for committing: The...»

value of land: had been. found on. full investiga-

_ tion to be an impracticable rule. The contribu-

_ tions of revenue. including imports , & exports;

must be too chanyeable in their amount ; too - -

-\ @iffieult. to. be adjusted; and too injurious to

‘7 tier noncommercial States: -The number ‘of in-

habitants appeared to. him the only — & prac-. *

ticable rule.

| William Richardson’ Davie of, North Carolina pro-

posed a compromise between ‘population and state ee

equality (tbtd.) : : °

He seemed to think tHat' wealth or “property

‘ought to be represented in the 2d. branch; and »

numbers in the Ist. branch.

The convention voted 7 States to 3, with one State.

divided, to refer’ the first sentence of the resolution

‘of the ‘Committee on Representation in the— Legisla>—

ture to a new five-man special: committee. The clause

requiring appropriation and tax bills to originate ‘in

the first branch was passed 5 to 3 with 3 States di-

vided. _ I Farrand 538-539. Jaibes Wilson then (id:at

D42)i- .

* * * signified that his views incagreeing te the @°

Commitmt. was that the Come might consider —

' the propriety of adopting a scaie similar to that

: established by the Constitution of Masts. [see

p. 18, note 9 above] which wd give an advan-.

tage to. ye. small States“ without substantially -

departing from a rule of proportion.

“After debate began.on the. clause of the ‘committee’ s

“yeport concerning the origination of tax and appro-

_ priation bills, George Mason said (id. at 544):

He was i friend to proportional representation

in both branches; but supposed that some points

must be yielded, for the sake of accommodation.

* . P

: . a Poe Se ee

: ff : .

When debate began on ‘July 7th, Elbridge Gerry

said that the issue of representation was (I Farrand ,

550) :

' ** * the critical question. He lead rather

agree to it tlian have no accommodation. A

Governt. short of a proper national plan if gen-

erally acceptable, -would be preferable to a_

proper one which if it could be carried at all,

would operate on discontented States. =

~The convention then approved the committee ‘resolu: °

tion giving each State an equal yote ‘in the second |

house 6 States to~3 ¢Pennsylvania, South Carolina, .

‘and Virginia), with two States divided. After debate |

-was renewed, William Paterson, who introduced the

New Jersey plan, said that he (id. at 55) :

* * * considered the mode & rule of representa-

tion in the Ist. branch as [a concession] and

that after the establishment of that point, the

small States‘would never be able to defend them- —

“selves without an etjuality of votes in the 2d.

‘ branch.’ There was no other ground of accom-

“ . -odation. His resolution was fixt. He would

niéet, the large States on that Ground and no

- other. For ‘himself he should. vote agst. the

Report,. becausé it-yielded too much [the origi-—

nation of -appropriations and revenue bills in

_the Ist house].

Gouvenani Morris was. also iqooned to ‘the hecet

‘ but for entirely different reasons (I Farrand 551-552) :~

- He was agst. the Report because it maintained

the improper Constitution of. the .2d.. branch.

- It made it another Congress, a mere whisp of

~~straw. It had been sd. (by: Mr.°Gerry) that

the new Governt. would be partly national,

partly federal; that it ought inthe first quality

to protect individuals ; in the second, the States.

‘But in what quality was it-to protect the agegre-

gate interest of the. whole. Among the many.

Tor a ene eco se Ds ee a

provisions which had been urged,*he had seen:

none for supporting the dignity and splendor of -

the American Empire. _It had been one of our |

greatest misfortunes tBht the great objéets of

the nation had been sacrificed. constantly to

Aoéal views; in like manner asthe general in-

-terests of States had been sacrificed to. those

of the Counties. * * * They were originally

nothing more than colonial corporations.’ 4)n °

‘the declaration of Independence, a, Governnt.

was to be formed. The small States aware of

the necessity of preventing. anarchy, and taking

advantage of the moment, extorted from the

large ones an equality of votes... Standing

now on that ground, they. demand under the

new system greater rights as men, than their -

fellow Citizens of the large States. The proper

answer to them is that the same necessity of

which they ‘formerly took advantage does not

3 — exist, and that the large States are at’

berty ‘now to consider what is. right, rather

than what may be expedient. = :

James Madison agreed with Morris (id. at 554) :

An Equality of votes in ye. Senate will enable

a minoritiy to hold the Majority—they: will com-

pel the majority to submit to ther particular

Interest or they will withhold their Assent to ©

essential & | necessary measures *** * .

. [King] a 5;

The report of the special committee on July 9th |

proposed that the number of representatives in the

_ first branch be specified in the constitution, but that

(id. dt 559): ~

the legislature could change this apportionment “upon

the principles of * * * wealth and number of inhabi-

tants.” I Farrand 558. Roger. Sherman inquired ,

* * * on what principles ‘or ealedlations the

“Report was founded. It did not appear to:,

Te ee SRS PE RD PS ee

oC ~

. &

46 fin <n aap an

correspand: with any rule of numbers, or of

any requisition hitherto adopted by Congs.’

* Nathaniel Gorham responded that (id. at 559-560) :

The number of, black& & whites with some.

regard to supposed wealth was the general

guide. Fractions could not be observed. The

Legislre. is to make, alterations from time to _

’ time as justice & proprict may require, Tyvo,*

objections prevailed agSt the rate of 1 member

for every 40,000 inhts. Whe Ist. was that the

Representation ‘would, seo 1 be too numerous:

the. 2d. that. the Westn. States who may have

a different interest, might if\admitted on that

orinelfie by degrees, out-vote the Atlantic.

Both these objections are removed. - The num- .

ber will be smal] in the ‘first instknée and may

be continued so, and the Atlantie-States having

‘ye. Govt. in their own hands, may take care of

“their own interest, by dealing out the right of

Representation ‘i in safe ree the Weést-

. én Statés. ee

The convention. then cclaabadt 9 States’ tb 2 ~

York and New Jersey opposing) the clause allowing

_ the legistature to apportion in‘the’ future on the basis

"of wealth and inhabitants. Jd. at 560. he

Debate started on a motion to refer the first elatise

of the report coneérning the initial apportionment to

a committee with one.member from each State. I

_ Farrand’560. Hugh Williamson again expressed fear

of the new, western States (ibid. ):

Mr. Williamson. thought it would be ‘néces-

sary to return to-the rule of numbers. but

that the Western States-stood on different foot- —

‘ing. If their b obs.arcky shall be rated as high

as that of the, Atlantic. States, then their repre-

sentation” ought to hold a_ like ‘proportion,

Otherwise if their “property was not to he

equally rated. ‘

In trying to explain the basis on which the committee

_ based the first apportionment, Gouverneur Morris said

(id. at 560-561):

. The Report is little more than a guess.’

' Wealth =~ not altogether disregarded by the

Come. ere‘it was apparently in.favor of —

one. State whose nos. were superior to the num~

bers of another, by a fraction only, a member

extraordinary was allowed to the former: and © .

“go vice versa. es

ws \-

George Read of Delaware (id. at 561) :

e * “asked why Georgia was allowed 2 miem- cs

‘ bers, when her number of inhabitants had stood

below that of Delaware. ° :

Defending the apportionment, Gouverneur Morris ‘re- :

plied (ibid.): ES : :

Such is the rapidity: of the population of that

State, that before the plan takes effect, it will |

probably be: enitled to’ 2'Representatives.

‘Governor Edmund Randolph of . Virginia said that .

. he disliked the committee report (I Farrand 561)':

He was apprehensive that as the number Was

not to be changed till the Natl. Legislature

should-please, a pretext would never be want-

_ ing to postpone alterations, and keep the power

in the hands. of those possessed of 1t. He was

‘in favor of the commitmnt. to a member from

each State. — .

William Paterson, although the originator of the

small-state plan, objected to the report in terms sug:

gesting his appreciation of the importance of a popus .°

lation’ standard for apportioning one house ( ibid.) :

Mr. Patterson considered the proposed esti-

.. +> mate for the future according to the Combined

‘| rule of numbers and wealth, as too vague. For

this reason N. Jersey was agst: it.. He could

{08-878 —8%—4 ! ; ; ;

”

‘ F : : * 6 ‘ : f

; , ‘ Oe SO DAYS Me See

ae . 4 0

‘Oo e “ mks . .

. <

a4 .

’

. ’

. - 4

e ‘ - $9

- . A ' ,

: ? ¥

: - \

—_

. regard negroes slaves in no light but as prop- -

erty. They are no free agents, have no pér-

sonal liberty, no faculty of acquiring property,

but ‘on the contrary are themselves property, &

like other property entirely at the will of the

? Master. — a man in Virga. a number of ©

votes in 5g ace to the number of his slaves?

and if Ne are not represented in the States

to which they belong, why should they be repre-

sented in the. Genl. Mtovt. What is the true

principle of Represgntation? It is an expedi-. .

‘ent by which an bly of certain individls. ,

_ chosen by the people is substituted in place of

me inconvenient rmeefng of the people. them- .

selves.

Seeing the anomaly of Paterson's position, Madison

pointed out ( id. at 562):

** * that his Stalin of Representation

, Which was in its principle the genuine one,

must for ever silence ‘the pretensions of the .

small States to,an equality of votes, with the

large ones. They ought to vote in the same

proportion in which their citizens would do, if

the pe si of all the States were collectively

_ met. He suggested as a proper ground of com-

promise, that in the first branch ‘the States .

should be represented aceording to their num-

ber of free inhabitants; And in the 2d. which |

' had for one of its primary objects the guard-

ianship of property, according.to the whole —

* number, ineluding slaves.

The. convention approved 9 States to 2 refe Tring the

first clause of the report. to a new committee. Ibid.

The next day, July 10th, Edmund Randolph. sub-

mitted ‘a plan toSconeiliate, the small States on the-

- issue of the apportionment of the seeond Brangh. He

proposed that the ‘vote in the second’ branch: be by

/ States with -each State counting equally on certain

issues such as navigation of rivers and regulating coin

oan y : 49 °

_ while “‘in all other cases the right of suffrage be pro-

~ portioned according to an: equitable rule of repre-

-gentation.”” III Farrand 56. °Also, on July 10th, the

committee on representation reported a proposal for _

a new initial apportionment of the Ist house, this time.

having 65 members instead of the former 56. T id.

at 563. John Rutledge of South Carolina made 4

motion that New Hampshire ‘‘be reduced from 3 to.

2 members” on the ground that “[h]er ‘numbers did _

not entitle her to 3 and it was a poor State.” Id. at’

566. In reply, Rufus: King stated ‘(tbid.) : oe :

._N. Hamshire has probably more than 120,000

. Inhabts. and has an’‘extensive country of toler- .

° able fertility.’ Its inhabts therefore may be ex-

‘ peeted to increase fast. He remarked that the -

- , four Eastern States having 800,000 souls, have.

4 fewer representatives than the four South-

ern States, having not more-than 700,000 souls

/ rating the blacks, as 5 for 3. The Eastern peo-

‘will advert to these cireumstances, and be dis-

satisfied. “He belfeved them to be very desirous

| of ‘uniting with their Southern brethren but did:

‘not think it prudent to rely so far on that dis-

'* position as to- subject them to any gross in~

‘ equality. frags

After’ the amendments proposed by Rutledge and

others were rejected, the convention approved the

- committee’s apportionment 9 States ts 2. Td. at 570.

Governor Randolph therm: proposed arn amendment

(T Fartand 570-571) :. i ae

that in order to Yscertain the alterations in the .

population & wealth ef the several States the

Legislature should, be required te cause a een

sus, and estimate to ‘bé taken withgn one. year

after its first meeting; and ecttery vearse

~~ thereafter—and that the Legislre. arrange the:

Representation accordingly. : Rare.

. 4 . ‘

> .

A e

; ° -*

j 4

> 2 o

rat suai? ‘eee

~ The amendment was opposed by. Gouverneur Mortis

-on the ground that it fettered (id. at 571):

etd Legislatire too much.:* * * He

dwelt much on the danger of throwing such a

| preponderancy into the western Scale, suggest-

ing that in. time the Western people wd. out-

_ number the Atlantic States. He wished there-

fore to put it in the power of the latter to keep

_ @ majority’ of- votes in their own hands. It

was objected he said that if the Legislre. are

_ left at liberty, they” will never readjust the

* Representation. ‘He admitted that this’ was

seaaiilin but he did not think it probable unless

the reasons agst. a revision of it were vert

> urgent” & in this case, it ought not to be done.

‘Debate resumed on Randolph’s proposal on July |

11th. . George Mason both rejected fears of western

control and argued for a clear standard of apportion-

ment based on population (I Farrand 518-5 19)

The greater the difficulty we find in fitinic a

pr oper rule of Representation, the more unwill-

ing onght.we to be, to throw the task from our-

selves, on the Geni. Legislre. He did not object

to the conjectural ratio which was to prevail in

the outset; but considered a Revision from time

to time according to some permanent & precise .

standard as essential to ye. fair representation

required in the Ist. branch. According to the ©

present population of America, the Northn. part —

of it “st a right to preponderate, and he could

not deny it. But he wished. it not to prepon-

derate hereafter when the reason, no longer con-

tinued.. From the nature of man we may be

sure, that-those who have power in their hands

will not give it up while they can retain it. -On

the Contrary we know they will always when

they can rather increase it. If the S. States

therefore should have 34° of the people of

America within their limits, the Northern will

An .

PLY TNR et RR OS

oy eer

hold fast the majority of Representatives. 14

“wwill govern the 34. The S.-States will com-.

plain: but they may complain from generation

to generation without redress. Unless some

»rinciple therefore which will do, justice to. them

Saveatiee shall be inserted “in the Constitution,

disagreeable as the declaration was to him, he

must declare he-tould neither vote for the sys-

tem here nor support it, in his State.* Strong

objections had_been drawn from the danger te

the Atlantic interests from new Western States.

Ought we to sacrifice what we know to be right

_ im itself, lest it should prove favorable to States

- which are not yet in existence. If the Western

_ States are to be admitted into the Union as they

arise, they must, he wd: repeat; be treated as

equals, and subjected to no degrading discrim-:

inations. * * * He urged that nunibers of in-'

habitants: though not alays a precise standard

of wealth was sufficiently so for every substan-.

tial purpose. : a)

Hugh Williamson of North Carolina proposed a sub-

stitute to Randolph’s resolution (id. at 579) :

mn:

“that in order to ascertain the alternations that

-may happen in the popilation & wealth of the

several States, a.census shall be taken of the

free white inhabitants and 4/5ths of those of

- other descriptions on the Ist year after this

Government shall have been adopted and every

year thereafter; and that the Representa-.

tion be regulated accordingly.” =

After agreeing to the substitution, Randolph (7d. at

' 579-580): . nt Eg 2 ica ; .

~. “ * * * observed that the ratio fixt for the Ist.

[legislature] was a ‘mere conjecture, that it

placed the power in‘the hands -of that part of

America, which could not always be entitled to

it, that this power would not be voluntarily re-

-nouneed; and that it was consequently the duty -

of the Convention to secure its ‘renwaciation

’ ;

> { ay A Q

in jaakion wget SO require; “eo some ¢on-

stitutional provisions. If equality between great

: & small States be inadmissible, because in that.

Ef _ case unequal numbers of Constituents wd. be

“* represented by equal numbers of votes; was

vit not equally inadmissible that a larger &

_ more populous distri¢t of America should here- |

_ after:have less representation, than a smaller & .

less populous district. If a fair representation

of the people be not secured, the injustice of

the Govt. will shake it to its. foundations. What:

relates to suffrage is justly stated by the cele-

brated Montesquieu, as a fundamental article in

Republican Govts.

John Rutledge then repeated his contention that

wealth should be considered in apportionment (id.

at 582) +

Mr. Rutlidge [sic] contended for the shins

sion ef wealth in the estimate by which

States will not be able to contribute in propor-

tien to their numbers, they shd. not therefore

be represented in that proportion. The-Atlan- ~~

tic States will not concur in such a plan. He

moved that ‘‘at the end of _ years after the

Ist. meeting of the Legislature, and of every

years thereafter, the Legislature shall pro-

portion the Representation according to the

priiciples of wealth & population”

Roger Sherman opposed considering wealth (bid. )

Mr. Sherman thougiit the number of people —

alone the best rule for measuring wealth aswell

_as representation; and that if the Legislature

were to bé governed by wealth, they would be |

obliged to estimate it by numbers.

Returning to his fear of the W est, Gouve syneur Mor |

ris argued much like those who. now claim that rura] —

‘areas are entitled to no ae nenee because rural

} epre-

| sentation should be regulated.’ The Western-

‘

people are better at running a government (1 Farrand

The Busy haunts of men not the remote wilder-

ness, was the proper School of political Talents.

.- If the Western people get the power into their

* hands they will’ ruin the. Atlaittic interests.

The Back members are always most averse to

_the best measures. He mehtioned the case of.

Pena. formerly. The lower part of the State

had ye. power-in the first instance. They kept

Z in yr. own: hands. & the'country was ye. better

or it.”* | -

Madison opposed any proposals designed to limit west-

ern representation (ig. at 584-589):

Nhe case of Pena. had been mentioned where it

-was admitted that those who were possessed of

the power in the original settlement, never ad-

‘mitted the new settlmts. to a due share ‘of it.

England ‘was a still more ‘striking example.

The power there had long been in the hands of

the boroughs, of the minority ; who had opposed °

-& defeated every reform which had peen at-

‘tempted. Virga. was in a lesser degree another

example. With regard to the: Western States,

he was clear & firm in opinion that no unfavor-

able-distinctions were admissible. either in point

of justice or policy. * * * He could not agree

that any ‘substantial objection. lay agst. fixig

‘numbers €or the perpetual standard of Repre-

sentation. It was said that* Representation &

taxation were to ‘go ‘together; that taxation &

wealth ought to go together, that population and

wealth were not measures of each other. He ad-.

_ %4While Morris praised Pennsylvania for’ preventing the ©

_newly settled area from attaining power through malapportion-

ment, it if significant that the ;convention rejected his view that.

a similar-result should be attained by placing in the Constitu-

tion a limitation on the representation of new States.

SAS

mitted that: in different climates, under differ- _

ent :forms of Govt. and in different stages of

civilization the inference was perfectly just’.

He would adinit that in no situation numbers of

inhabitants were an accurate measure of wealth.

Tie contended however that in the U- States it

was sufficiently so’ for the object | in contem-

plation. | Sire

". (eorge Mason supported the requirement of periodi-

cal reapportionment. He (id: at 586) : *y

* * * Aoreed with Mr. Govr. Morris that we

ought to: leave the interests of the people to the

Representatives of the peoplé: but the, objec-

~ tion was that the Legislature would cease to be

the Representatives of the people. It would

- continue so no longer than the States now con-

- taining a majority of the peaple should retain

-that majority. As soon as the ‘Southern &

Western population should predominate, which

‘must happen in a few years, the power wd be in

the hands of the’ minority, and would never be

yielded to; the majority, unless provided’ for by

the Constitution. a.

The convention’ adopted 6 States to 4 Williamson's,

_ proposal of a census for free inhabitants. “bid. Sub=

sequently, Williamson's entire resolution, however, .

was rejected 9 to 0.as different States opposed it for.

different reasons. Id. at 588.

On ‘July 12, 1787, the convention debated a proposal —

to. make taxation proportional! to representation and

to base representatiqn” on inhabitants and wealth.

William Samyel Johnson of Connecticut contended (I

Farrand 593) : Pe as

a that Wealth and population were the true,

equitable ‘rule of representation; but he econ-

~ ~ eerved that these two princtples resolved them- ~

' . selves into one; -population. bethg the best

measure of .wealth.

On the other aid, Rufus Rie replied that (id. ¢

595) :

* * * he had still two powerful objections agst.

tying down the Legislature to the rule of num-

_, berso 1. they were at this time an uncertain

index of the relative wealth of the States.- 2. if

they were a just ircex at this time it can not be

supposed always to continue so.

Charles Pinckney then proposed that slaves equa!

to whites ‘in ascertaining representation (id. at 596) :

This he urged was nothing mor e than justice.

The blacks are the labourers, the peasants of

the Southern States: they areas productive of .

: pecuniary resources as‘ those of the Northern

States. They add*equally to the. wealth, and -

cénsidering money as the sinew of war, to the

strength of the nation., ~

The convention adopted a comsbatibes basing both di-

rect taxation and representation on whites and 3/5 of

the slaves and requiring a census within six years and

subsequently every ten vears. Jd. at 597. fe

Edmund Randolph proposed on July 13th that the

resolution passed on July 9th providing for the future

apportionment of representatives on the basis of

_ wealth and numbers be reconsidered. I Farrand 603.

He. submitted a’ resolution deleting the reference to

wealth: Turing the debate on this resolution James

_ Wilson strongly supported Saar mars on the basis.

of population (id. at 605-606) : ears 6

Coneeivirig that all men wherever placed have

equal rights end*tdre equally entitled to confi-

dence, he viewed without apprehension , the

period when a few States shanld contain the

superior number ‘of people. The majority of

_people wherever found’ ought in ali questions

-*to ‘govern the minority. If the interior Coun-

od try should acquire this ep ag they will m

only have the right, but will avail themselvés

56 Pinape

of .it whether we will or.no. This jealousy mis-

led: the ‘policy of G. Britain with regard to’

-. America. The fatal maxims espoused .by her

were that the Colonies. were growing too fast,

“and .that their growth must be stinted in time..

What -were the consequences? first: enmity on

our part, then ‘actual separation. Like conse-

quences will result on the part of the interior”

settlements, if like jealousy & policy be pursued

ours. Further. if numbers be nof,a proper

rule, why is not some better ruJe pointed out.

_— Nop one. has yet ventured.to attempt it. Congs.

have never been able to discover a better. No

State as far as he had heard, has suggested any

other. In 1783, after elaborate diseussion of a

-measure of wealth ail were satisfied then as

they are now that the rule of numbers, does ‘not

differ much from the combined rule of numbers

. & wealth. Again he éould not agreé that prop- —

_ erty was the sole or the primary object of |

Governt. & Society. The cultivation & improve-.

ment.of the human. mind was the most noble

vbject. With respect to this abject, as well as

» to other sinned rights, numbers. were surely

the natural & precise measure of , Representa-

tron. And with'respect to property, they could

not vary much from the precise measure. In

no point of view however could the establishmt.

of numbers as the rule of representation in the

‘Ist. branch vary his opinion as tosthe inipro-—

priety of’ letting a Vicleus = into the 2d.

branch.

3 Randolph’s resolution waa? States to O with Dela-

-~ ware divided. Jd. at 606.

On July 14th, Elbridge Gerry ee ed, and Rufus ;

-Kiig seconded, the follow) ng resolution (II Farrand

3): . ‘ #e

that in order to secure the liberties of the States

already confederated, the number of Represen-

. tatives'in the Ist branch of the States which

shall hereafter be established shall never exceed

oe 4]

COR MORI saa vcs

; | >

in number,~the Representatives from such of

the States as shall accede to this confederation.

Gerry explained. that he appreherided dangers from

the western states. » He was for admitting them (ibid.) :

* * * on liberal terms, but not for putting our-

selves into their hands. They: will if they ac-

quire_power like ‘all men, abuse it. . They will

oppress commerce, and drain our. wealth into

the Western Countr?. To guard agst. these con-

sequences, he thought it. necessary to limit the |

.. Number of new States to be admitted into thé

ee Union, in such a manner, that they should never

be abie to outnumber the Atlantic.States.

Roger Sherman opposed the resolution (ibid.) :

We are providing for our posterity, for our

children and jour grand Children, who would

he as likely to be. citizens of new Western.

States, as of the old States. -On this considera: |

tion alone, we ought to make na.such discrimi-

nation as was proposed by the motion.

Gerry reyilied that’ (¢hid.) ¢ Y Rae

_ There was a rage for ‘emigration front the -

Eastern States to the Western-Country and he

did not wish-those remaining behind to be at

_ the mercy of the Emigrants. Besides foreign-

ers are resorting to that Country, and/it is un-

. , certain what turn things may. take there.

The proposal was rejected 5 to 4° with one State:

divided. ; ae.

John Rutledge then proposed reconsideration of the

resolution previously adopted giving equality of rep-

resentation in the Senate-and requiring money bills to -

originate in the first branch. ‘IT Farrand 3. Support-

ing reconsideration, James Wilson stressed’ (id. at 4):

_* * * when on the question concerning an equal-

ity of votes, the House was divided, our Constit-

uents had' they voted! as. their representatives

did, would have sfood as 24 agst. the equality,.

a- ‘ ey,

and 1% only i in tan f it. This fact would ere

» long be known, and Ut will appear that this

a What’ h point has been carried by 3 agst.

“ en when they find that the essential principles

of justice have been violated in the outset of the

Government: As to the privilege of originating

* money bills, it was not considered by any as of

much moment, and by many as improper in it-

self. He hoped both: clauses would be ree on: }

. sidered. The equality of votes was a point of

such eritical importance, that every opportunity

_ ought to be allowed, for discussing and collect-

ing the mind of the Convention | on it.

Luther Martin restated the threats he. had eon

earlier in ‘the convention (ibid.) :

He had rather. there shout " two Confedera-

cies, than. one founded on any other principle -

than an equality of votes in the 2d branch: at

least.

Charles Pinckney S gaia moved (id. at 5)

fh. * * * that instead ‘of an equality ‘of votes the

States should be represented in the 2d branch .

as follows: N.H. by 2. members, Mas 4. R.I. 1.

.Cont. 3. - N.Y. 3. 'N.J.-2.5 Pa. 4. Del. 1. Md.

3. Virga. 5. N.C, 3. S.C. 3. Geo, 2, making

- in the whole 36.

James Madison supported the motion’ “as a reason-

able compromise.”’ Ibid. eek

Rufus King continued to demand apportionment

based on population. in both houses.” He (II are

— 6-7): : :

* * * considered ‘the proposed Government as

~ substantially and formally, a General and Na-

tional Government over the people. of Ameri¢a.

. There never will be a case in which it will act as

- a federal Government on the States and not on

*What hopés: will our constituents enter-

i Soe ee RUROT er PRlias tet A Pee

the individual Citizens. | Andis it hot a clear

principle that iri a free Govt. those who. are to

ce-= be the objects of a Goyt. ought to influence the

- operations of it? What reason can be assigned

why the samé rule of representation sd. not pre-

vail in\the 2d branch as in the Ast?’ He could |

conceive none. On the contrary, every view of

the ‘subject that jiresented itself, seemed to re-

quire it. * * * [I]n N. York he had seen that

% the ‘most powerful. argument used by the con-

siderate Opponents*to the grant of the Impost

to Congress, was pointed agst. the viecious con-

stitution of Congs. with regard to representa-

tion & suffrage. He was sure.that no Govt.

could last that. was not founded on, just, prin-

an-allowance of an equal yote to al the States.

It would be better Re thought: to submit to a

little more confusion & convulsion, than. to sub-

mit to such an evil. °

On ‘the other ‘hand, Caleb Strong of Massachusetts

supported the compromise in the committee report

rathér than Pinckney’s resqlution (td. at 7-8) :.

The Convention had been much divided im

opinion. In.order to aveid the consequences

of it,aan aecomodation had been proposed, A

Committee had been appdirtited; and. though

some of the members of it wére averse to an

equality of -votes, a Report has been nfide in

favor of it. It-is agreed on all handsthat Con-

gress are nearly at an end. ‘If ne Accommoda-

_ tion takes place, the Union itself must soon’ be

dissolved, * * * He thought the smail States.

"had made a-considerable’ concession in the ar:

ticle of money bills, and that they might nat-.

urally expect some concessions or the other side.’

From this view of the matter he was compelled |

to give his vote for the Report taken all to-

gether. _. ‘ ae ae. |

‘ o

a 60: Wart ns mae

‘James Madison (II Farrand'8-9): iat i :

+ * expressed: his apprehensions that if the.

proper foundation of Government was de-

stroved, by substi ting an equality in place of

a proportional Representation, no proper super-

structure would be raised. * * * He reminded

the small States] of the consequences of laying -

the existing eorifederation on improper princi-

ples. * * * It had been very properly observed

by Mr. Patterson [sic] that Representation was

an expedient by which: the meeting of the people

themselves was. rendered unnecéssary ; and thato

-. the representatives’ ought therefore. to bear a

- proportion to the votes which their constitue nts

if convened, would respectively have. Was not

this remark as applicable to.one branch of the

Representation as to the other? But it had

been said that the Governt. would in its opera-

tion be: partly federal, partly ‘national; that —

altho’ in the latter respect the Representatives:

of the people ought to be im.proportion to the

people: yet in cee former’ it ought. to be aceord- - -

“mg to the number of. States. If there was any

solidity in this distinction he was ready. to

abide‘ ‘by it, if there was none it ought to be

abandoned. Ii all cases where the Genl. Gov-

ernt. is to: act on the people, let: the people be

represented and the votes be proportional. In:

all cases where ‘the Governt. is to act on the

States as such, in like manner as Congs. now

_ act on tht, let the States be represented &

the votes "equal. This was the true ground

of compron\ise if’ there was any ground at all.

. But he denied. that there was any ground. He

ealled for a sittWe instance in which the Gen],

_ Govt. was not to operate. on the people in-

dividualiy. ‘The practicability of making laws, .

. With eoercive sanctions,. for the States as politi-

cal ‘bodies, had been exploded on all hands: * * *

He enumerated the objections agst. an /equality

of votes in the 2d branch, notwithstanding/ the

‘ proportional representation in the first{l. the

minority could negative the will of the majority

of the- people. 2. they could extort measures

by making then a condition of their Assent to

other necessary. measures. 3. they could ob-

trude measures on the majority: by virtue of the

peculiar powers 4vhich would be vested in. the

Senate... 4, the evil instead of being cured by —

time, would increase with every new State that

should be admitted, as they must all be ad-

mitted on the principle of equality. 5. the -

of the Northn. agst. the Southn. Senl® was 2

serious consideration. - °

James Wilson agreed with Madison (id. at 10):

A vice in the Representation, like an error in’

the: first concoction, must he followed by disease,

convulsions, and finally death itself. ‘The jus-

tice ‘of the general principle of proportional .

va representation has not in argument at. least

been yet: contradicted.

Pinckney’s motion was rejecte .d 6 to 4.with Pennsyl-

vania, Maryland, Virginia, and. South Carélina in the

minority. 7d. at'11: [Piel

_. On July 16, 1787, the convention passed, 5 States to

4 (Pennsy Ivania, Virginia, South Carolina, and Geor-

- gia), with Massachusetts divided, a’report from a ¢om-

-. mittee providing for equality: of representation ’ among

the States in the Senate. II Farrand 15, Edmund

-Randolph then proposed adjournment.to allow ‘‘some.

conciliatory experiment” to be devised. Td. at 18."

However, James Patterson stated that (ibid.):

No conciliation could be admissible on the. part

of the smaller States on any other ground than

that of an equality of votes’ in the 2d. branch.

\ ss ° °

A 2? : >

° = -\

Madison reports a meeting of the larger States the

‘following: day, July 17th’ (IT Farrand 19-20) :

.*°* * for the. purpese of consulting on the

proper steps to be taken in consequence of the’

vete in favor of an equal Representation in the

2d. branch, and the apparent inflexibility’of the’

smaller States on that point—Several- -meéinbers

from the. latter States also attended. * ** Tt

appeared indeed that the opinions of the mem-

bers who disliked the equality of- votes differed

sod much as to the importance of that point, and

as to the policy of risking a failure of fany

general ‘act of. the Convention by inflexibly

opposing it.° Several of them supposing that

no good Governnt. could or would be bujlt on

that foundation, and that as a division ‘6f the

Convention into two opinions was unavoidable

it would be better that the side comprising the

principal States, and a majority of the people

of America, should propose a scheme of Govt.

to the States, than*that a scheme should be pro-

posed ‘on the other side, would have concurred

in a firfn opposition’ to the smaller States, and. .

in a separate recommendation, if eventually ~

necessary. Others seemed inclined to yield to

the smaller States, and to concur in such an Act

however imperfect & exceptionable, as might.be

agreed on by the -Conventien. as a body, tho’

decided by a bare majority of States and by al

‘minority of the people of the U. States. It is

probable that the result of this ‘consultation

; satisfied the smaller States that-thev had noth-

ing to appfehend froma Unidn of the larger,

in any plan whatever agst.. the equality of. votes —

in the 2d. branch. wie om

This finally settled the issue of re representation i in Con-

gress, an issue on whic h “the ‘convention, had nearly

flound ered:

“Alexander Martin. a n delegate ‘from, North Carolina,

wrate Governor Caswell on July: 28h that’ “it is no

small task to bring toa conclusion the Rreat —

: 2, ; ‘ io 63 ‘ Pe ; , a ;

“of. a. United Government viewed - in differcht points

hy: thirt teen Independent Sovereignties ; United Amer- _ ;

_iea must have one general Interest to be a Nation,

‘at-the same time presérving the’ particular. Interest

of the Individual States.’’. ELL - Farrand. 64-65," A.

‘few days later on August Ist, Piéree Butler of. South.

Carolina wrote’ that the ‘purpose of the convention

-*. was ‘to form a stronger Constitution on strict Foed-

~~ eral. Principles, for the Governmt.’of the whole’ See

Id, at 67. a4

tives, Gouverneur Morris favored no such requirement,

-- but only a freehold. “Such a regulation is not neces-

sary. People rarely chuse a nonresident—It is im: -

_ proper ‘as in. the Ist. branch; the people at large, not

“the fates are represented”’ (emphasis in’ original).

IL Farrand 217. .That same day, the report of the

‘Conimittee on Detail amended without debate or’

objection the section concerning. the apportionment

of the Ist branch so as to provide “that each State.

shatl have one representative at least.” Td. at 222."

The next day, in discussing a provision that Con-

gress has the power to regulate Congressional elec--

tions, James Madison ‘implied’ clearly his ‘view that

apportionment of state legislatures on some. basis

other than population, was unfair and _ that: a provi-.

sion was necessary in the new constitution to. prevent

_the persons, who as a‘ result. of malapportienment,

controlled state ‘government from running Congres-_

sional, elections to serve their own interests (id. at

24h):

‘. Besides, the inequality of the Representation in

the Legislatures of particular States, would

_ produce a like inequality .in their representa-

- tion’ in the Natl. Legislature, as it was ‘Presum-

706-578—G3-——5_ > + . ‘

able that the Counties having the power in the

former case would secure it to erscomuseneate in the

latter. ee oe

On August 13th, Cindlaes sien snppacted the pro-

-posa! that revenue bills ‘must originate in House of.:

Representativés and. cannot be modified in Senate on

* the ground that (IT Farrand 273-274): ng

1. The Senate did not represent the people, but

the States in their political character.’ It*was

‘improper therefore that it shouid tax the

_ people. * * * si fog of Lords does not rep-

resent nor tax’ the ople, because net elected

by the people. * * * the pursestrings should be

in the hands .of the Representatives’ of the

: people. . :

' Likewise on August 234, ree ‘Madison, in the

debate on the Senate’s power as te treaties, said that

“the Senate represented the States alone. * * *.”’

II Farrand 392.. During debate on August 30 on the

power

of the new government to admit new States,

Luther Martin opposed a provision to allow the divi-

sion of existing States only with the permission of

those States. He suggest@l as the reason for his posi-

tion that a minority of the States might control the

newly

463):

settled areas through malapportionment (id. at -,

* * * Martin, urged the nreasonableness of

~ forcing & etiaranteeing the people of Virginia

beyond the Mountains, the Western people, of

N. Carolina. & of Georgia, & the people of

Maine, to continue under the States now fov-

. , erning them, without the-consent of those States

to their separation. Even if they should be-

come the majority, the majority of. Counties, '

as in — may still hold fost the dominion

over them.

g }

65 .

; pe ek ay, .

Much of the opposition on September 8thi to the pro-

posal that treaties must be ratified’ by two thirds of

the Senate.arose from the 1 fact that a minority of the’

people will elect-a majority of the Senators. Hugh

Williamson . of - North Carolina (I Farrand 548) «

* 8 ©

) remarked that Treaties are to be made i in

; majority of the States without a-ma jority of the

- people, Eight men may be a majority of g

quorum, & should not have the power to glecide

the conditions of peace.

Elbridge Gerry similarly stressed (2bid,) :

.* * * the danger.of putting the essential rights -

of the Union. ih the hands of so small ‘a number

haps, not one fifth of the people.

On. September 17, 1787, the Cony ention tr ansmitted

the proposed constitutiom to the Congress of the Con-—

federation. II Farrand 665. -The resolution stated °

that the Constitution should afterwards be submitted

to a convention of delegates in each State for rati-

fication. Ibid. After ratification hy°the conventions

_ of nine States, the resolution stated that the Congress

‘

of the Confederation shall ‘set a day.and nlace for |

the election of President under the new constitution

by. the electors chosen in the various States. The

‘ letter accompanying both the proposed constitution

and the resolution to. the Congress of the Confedera-

tion stated that “[i]t is obviously impracticable in

the federal government ofthese States, to seeure all

rights of. independent ‘sovereignty to eavh, and yet

. provide for the interest and safety of all—Individuals

entering into society, must give up a share of liberty

‘to preserve the rest.’’ Id. at 666. On the other hand,

‘the letter:stated that the basic object of the conven-

- tion was “the consolidation of our Union.’’ Jd. at 667.

are pos

fo pee

“

; oe

The transmission of the yroposed Constitution to the .

Congress of the existing Confederation, together with

the language of the accompanying. letter, demonstrate

that the “Constitution was-viewed as a substantial

modification to the Confederaticn in order to give

greater power to the federal government dt the ex-

pense of the independence of the States while at the

same time-net totally discarding the existing system

by creating a national system in which state sov-

ereignty was ended. ~ Fe

b: The “Federalist Piiet-ta Number 22 of the

Federalist Papers, Which was published on December.

«14, 1787, Alexander Hamilton attacked at somie length

equality: of representation by States in the Conti-

nental Congress in his enymeration of the evils and

weaknesses ‘of the Confederation (The ‘Federalist cs

(Cooke ed., 1961), pp. 138- 139):

The right of equal suffrage among the States ihe

is another exceptionable part of the confedera-

tion. Every idea of proportion, and every, rule

of fair representation conspire to condemn a

principle, which gives to Rhode-Island an equal

weight in the scale of power with Massachusetts,

or C onnectic ut, or New-York; and to Delaware,.

y @ an equal voice in the'national deliberations with

Pennsylvania or Virginia, or North-Carolina.

Its operation contradicts that fundamental

maxin of republican government, which. re-

quires that the sense of the majority should

prevail. Sophistry may reply, that sovereigns

are equal,-and that a majority of the votes of.

the States will be a majority of confederated

America. But this kind of logical legerdemain

will never counteract the plain suggestions of.

‘Justice and commop sense. It may happen that

. this majority of States is a small minority -of

the -people’ of America; and two thirds of the

<0 Mereimafter referred to.as “The Federeiist.”

ra ties

“

et te eee) ee eet

nmr

Se 2

67 °

. her

upon the credit of artificial distinctions and

syllogistic subleties, to submit their interests to

people of America, could.not long he persuaded, .

the management: and disposal of oné third. ‘The :

larger States: would after a while revolt from

the idea of receiving the law. frem tle smaller.

To acquiesce in such a privation of their due-

importance in the political ‘scale, would be not

merely to be insensible to the love of power, but -

even, to sacrifiee the desire .of equality. * * * 3

It may he objected to this, that not seven

but nine: States, or .two thirds: cf the whole

number must consent to the most important

resolutions; and it may be thence inferred, that

nine States would always comprehend a major-

ity of the inhabitants of the Union. But this

does. not obviate the impropriety of*an equal

Sions and populousness; nor is the inference

accurate in-point of fact: for we can enumerate

° ts Ong ‘ys. . "Seer

mihe States which contain less than a majority

of the people: and it is constitutionally: possible,

_ that these nine, may give the vote.

t' this is not all; what at first sicht ‘may

seen! a remedy, is in reality.a poison. To give.a

minority a negative upon the majority (which

is always: the case where more than a majority

fs requisite to a decision) is in its tendeney to

- Subject the sense of the greater humber to that

of the lesser number, Congress from the non-

attendance of a few States have beer frequently.

. in the situation ef a Polish:Diet, where a sincle °

"veto ‘has been sufficient to put a stop to all their

movements. “A. sixtieth part. of the Union,

which is about the proportion of Deélawar

Rhode-Island, has several. times heen‘ able to

oppose an intire haf to its operations. This is,.

one of those refinements which in practice has:

an effect; the reverse. of what is expectal from

it in theory. ** * In those emergencies of a

‘vote between States-of the most unequal dimen- -

e and _:

nation, in which the goodness or badness, the ’

weakness or strength of its government; is of.

a -' 68

the. greatest importance, there is commonly a _

. necessity for action. The public, business ‘must

in some way or other go. forward. If a pertina-

. ious minority can.controul the opinion of a

majority respecting the best mode’ of conduet-

ing it; the majority in order that something’

_may be done, must conform to the views ofthe

_minority; ‘and. thus-. the sense of the smaller

number will over-rule that of the greater, and

give a tone to the national proceedings. Hence

tedious delays—continual negotiation and in- —

ie trigue—contemptible compromises of the public*’

good.: And ‘yet in: such a system, it is even

- happy when such compromises can take place:

For upon somé’ occasions, things will not admit —

of accommodation; and then the measures of

' government ‘must be injuriously suspended or

fatally defeated. It is often, by the impracti-

cability of ‘obtaining the conenrrence of the -

necessary number of votes, kept in a state of

-jnaction. Its situation must always savour’ of

weakness—sometimes border upon anarehy.

‘Hamilton described:in Number 32 the balance be-

tween the States-and the féderal government under .

the Proposed constitution (The ‘Federalist, PP. 199—

2.200):

An intire eT ee of the States jebe one

o ~~. eomplete national sovereignty would imply an °

' intire.subordination of the parts; and whatever

powers might remain in them would be alto-

gether dependent on the ‘general will. But as

the plan of the Convention aims only at a par-

tial Union or consolidation, the State Govern-

. ments would clearly retain all the rights of sov-

ereignty which they before had and which were

not by that wct erclusively delegated to the

- United States. >This exclusive delegation or

. rather this alienation of State ‘sovereignty.

_ would only exist in three cases; where the Con- ;

stitution in express terms granted an exclusive

autbority to the Union: where it granted in’ one

See te eed ta te

A ;

ty °

dintened-s an authority to the Union and in an- .

other prohibited the States from exercising the -

u- like authority; &nd where it grantéd an au- ,

thority to the Union, to.which a similar author- “

ity in the States would he absolutely and to- .

‘tally. contradictory aad repugnant. °

In Number 39, James Madison similarly. deseribed the :

_ hew system (The Federalist, pp. 254-255, 257) :

The house of representatives will derive its

powers from the people of America, and the .

-.. people will be represented in the same ._propor-

5 tion, and on the same principle, as they are in

ea ‘Legislature of a particular State. So far

the’ Government is national not federal. The’.

Senate on the other hand will derive its powers.

from -the Statés, as political and co-equal so-

cieties ; and these will be represented on the

principle of equality in the Senate, as they now .

are in the existing Congress. So far the gil

ernment is federal, not national. * * *

* * . 7 * *

The “proposed ° ‘Constitution | therefore is, if

- ' strictness neither.a‘national nor a federal: con-"

-. stitution; but a composition of both. In its

foundation, it is federal,‘not national; in fhe

sources. from which the ordinary powers of the

Government are drawn, it is partly federal, and

partly national: in the operation of these pow-

ets, it is natiohal, not federal: In the extent of

them agaim it is federal, not national: And -

finally, in the authoritative mode of introduc-

ing ‘amendments, it is neither wholly federal,

" nor wholly national. :

’ He repeated in Number 40 that the States cota ee

. ‘to be independent sovereigns under the new constitu-

/*. tion (id. at 262): ;

“We have seen that in the new government as

in the old, the general powers are limited, and

that the States in all unenumerated cases, are

. vits members.

70 &

left 3 in the enjoyment of their sovereign and'in- :

_ dependent jurisdiction. -

See also id. at 261. Likewise, in Nutaher 45, Madison

said that ‘‘the States will retain under the proposed

Constitution. a very extensive ‘portion of -active sov- —

erejgnty * * #7 (id. at 340) and that (id. at 311-312):

The State Goverriments may be regarded as

- /eonstituent and essential parts of the federal |;

‘Government; whilst the latter is nowise essen- |

tial to the operation__or ‘organisation -of. the

‘former. Without the intervention of the State -

Legislatures the President of the United States

-.. cannot be elected at all. They muist in all erases

have a-great share in his appointment, and will

perhaps. in most cases of themselves determine

“ait. The Senate will be elected absolutely ‘and —-

exclusively. by the State Legislatures. Even

the House..of Representatives, though drawn

immediately from. the People, will be chosen

very miich under the mfuence of that ‘class of.

* men, whose influence over the ‘people obtains

for themselves an election into the State Legis-

Jatures. Thus each of the principal branches:

of the federal Government will owe. its-exist-

ence more or less to the favor of the State Gov-

_ ernments, and must consequently feel a depend- ~ |

ence, which is much more likely to beget a <dis-

position. tco obsequious, than too overbearing

. towards ‘them. On the other side, the eompon-

ent parts of the State Governments will in no

instance be indebted for their appointment to

‘the direct agenev of the federal government,

and very Kittle if at all, to the local influence of

. In Number 54, Madison explained the basis for the

_ apportionment. of the House of Representatives (The

Federalist, pp. 366, 368) :

- It is not,eontended-that the muinber of people

MORE SOR RTS, Re eT ee een re a el Toners yen Een een WT eS

asi.

Suteatamirueis

Jingo aade

‘

non thie proportion of thosé who are to

ns Fe oe the people of each State. * * * [T]he

rule is understood to refer to the personal

rights of the people, with which it his'a natural —

and universal connection. * * * :

es a * e * *

se ® It is agreed on. all sides, that numbers

are the best seale of wealth and taxation, .as

they are the only proper, scale of representation, ;

This proposition seemed to “Madison; Hamilton, ‘and

John Jay, the writers: of the Federalist Papers, to be

so self-evident that this is the entire discussion de-’

voted to the basie principle of apportioning one of the-

~ two houses of the legislature’ in.their detatied exposi-

tion of the proposed constitution:

‘Tn*eontrast, Madison apparéntly felt compelled .to |

explain the’ apportionynent of the Senate. at length in

Number 62 (The Federalist, pp. “416-417) :

“The equality of representation in the senate

is another point; whieh, being evidently. the re-

sult ef compromise between the opposite pre-

tensions of the large and the small states, does

not call ‘for much discussion. If indeed it be

right ‘that among a, people thoroughly, incor-

porated into one nation, eve ry district‘ought to

have-a proportional-share in the gov ernment ; .

and that among independent and: sovereign

parties however unequal gn size, ought to have

an equal share in the. gommon councils, 7t does

not appear to be Without, somé reason, that in

a compound republic partaking hoth of the na-

tional and federal character, the government

ought to be founded on a mixture of the prin-

ciples of proportional and equal representation.

But it is super fluous to try By the standards.

of theory, a part of ‘the constitution which is

allowed on all hands to- be the result not of

theory, but ‘tof & spirit. of amity, and“ that

% 4 if ° i -

. oo i

mutual deference and cohcession which, the pe-

enliarity of our litical situation rendered in- .

dispensable.” commen government with

powers equal tof@#ts. objects, is called for by the:

voice, and still more loudly by the political sii: ~

uation of America. A.government founded on *

principles more consonant to the wishes of the

. larger states, is not likely to be obtained from

the smatler states. The only option then for

the former. lies -between the proposed govern-

- able.’ Under this .alternative the ‘&dvice of

prudence must ybe, to embrace the lesser evil;

_ - and instead of indulging a fruitless anticipation

~~ —~of- the possible misehiefs which may ensue, to

if contemplate rather the advantageous conse.”

qyenses which may: qualify the "sacrifice.

n- this spirit it may be remarked, that the |

- equal vote allowed to each state, is at once a

constitutional recognition of the portion of

sovereignty remaining in the individual states,

_ and an instrument for pres@rving that residu-

ary:severeignty.. So far the equality ought to °

be n6 less acceptable to the large than to the.»

small states; since they are not: “less solicitous

to guard by every possible expedient against

an Wiproper consolidation of the states into —

. one,simple republic.

And in Number 58 Madison janinanring) the differ-

- ence in functions betw een the House and Senate: “one

branch of the legislature is a° representation of. citi-

‘zens; the other of the states * * *.” Jd. at 392.

" ¢.- Other Post-Convention Materials Prior to- the

Ratifying Canventions—George Mason, who did not

sign the proposed Constitution, wrote on» draft of

the Constitution as éne of his reasons for this action

that the Senate had-“the power of altering all money

bills, and of originating appropriations. ef money, and

‘..-. ment and a government still. more objection-.

‘the salaries of the officers of their own appointment, “

PUES ai! Aaa Sai TOMAS

PD POR RICA

States, although they are not the representatives of -

a ea: NC ESPAG SR Cee eee ee ae - op 38 os

aa ica arene ee e

SoS alee S

ae sets e 3

the people or amenable-to them.”” II Farrand 638.

Pierce Butler, a Zelegate \to the. convention from

* South Carolina, wrote to Weedon Butler on October 8°

“describing “the ' proposed constitution (TIT Farrand

We, in many instances took the Constitution of:

Britain, when in its purity, for a model, and

surely We cou’d not have a better. We tried

‘to avoid what appeared té Us the weak parts of

Antiént as wéll as Modern Republieks: * * *

View the system then As resulting “from a \

| .. Spirit of Accommodation to differeht Interests,

» and not the most. perfect one that the Deputies

cou’d devise fot a Country better adapted-for

the reception of it ‘tham America is at this day,.

or perhaps ever will be.’ It is a great. Extent of

Territory’ to be under One free Government

* * -*. We have, as you Will see, taken a por- |

tion of power from the Individual States,’ to

form a “General, Government for the whole to-

preserve'the Union: The Genera! Government

to Consist of two Branches of Legislature and

an .Executive to be vested in One person for

« four years, but elligible again—thé first: Branch.

of the Legislature to be elected- by the People

of the different States, agreeable to a ratio of |

_ numbers’ and ‘wealth, to serve for two vears.

The Second to: Consist of two mernbers-from .

each State, to-be appointed by. the Legislature

of the States to serve for six years. * *-* The-

powers of the General Government are so de-

fined as not to, destroy the Sovereignty of the

Individual States. °

In October 1787, a phamphlet was printed defending

thé Constitution which consisted largely of a speech °

written by Charles Pinckney of South Carolina which

-was intended to have been made to the Convention on

the United

: - May D9, He dttacked the wealoness of the Constitg

* tion, including as one cause (IIT Farrand 108) : —

The inequality of the pri iple > of -Representa-"

tion, where the largest and most inconsiderable

*Sfates have an equal vote in. 1 the a airs of the

: Union|:* *:*.-" e

Because of the many defects in the existing system,

he proposed that the'Convention (ibid.) : . :

will pay’no farther attention to the Confedera-

tion, than to consider it as good materials, and

‘view themselves as, at liberty to form and rec- —

ommend such a plan, as from their’ Rnowledge

of the temper of the people, and the. resources

éf the States, will be mest likely to render our.

government firm and united. This appears to

me, far more proper than to attempt-the repair

of a system, not only radically defective in prin-

ciple, but which, if it was possible to give it

operation, would prove absurd i oppressive.

” initaace stated that (id. at 109-110) :'

The first important alteration is, that of the

‘ . principle of Representation, and the distribu-

tion of the different Powers of Government.

In the federal, Couneils, each State ought.to have

a be ae in proportion to its importance; and —

no 1s justly entitled—to a greater. A

4 Reon esmttation is the sign of the reality. Upon

- this principle, however abused, the parliament

.. of Great) Britain is formed, and it has been.

‘uriiversally adopted by the States in the forma- -

tion of. their Legislatures, ** * The abuse of .

_ .this equality, has been censured as one of the

~~ most dangerous corruptions of the English Con-.

stitution; and I hope we shall not ineautiously

contract a‘ disease that .has been consuming

them. Nothing, but necessity, eould have .in-

duced Congress to ratify a Confederation upo

other principles. It certainly was the opinion .

if”

f i Pee fis

. .

of the first Confress, in 1774, to acquire ma-

_ terials for forming an estimate of the compara-

. tive importance of’ each State; for, in the

commencement of that session, they gave'as a

‘reason, for allowing each colony a’ vote, that

it was not in their | ae at that tine, to pre-

- cure evidence for determining.their importance.

This idea, of-a just Representation, seems to

have been conformable to the opinions of the:

best writers on the subject, that, in a confed-

erated system, ‘the membets ought to contribute:

-according to their abilities, aidshate a vote in

proportion .to their importance. But if each

must have a vote; it ean be défended ypon no

other ground, than that“of each .contributing .

an, equal share of the publie burdens:-either ~

would be a pexfect System. The present must:

ever centinue Treconcilable’ to josiee.. * * *

Fhe Senate, .1, propose .to have elected by the

House of Delegates, upon proportionable prin-

ciples, in the manner F have stated, which,

though rotative, will give that body a sufficient:

degree of stability and independetice. The dis-

tricts, into which the Union are to be divided,

will be se apportioned, as to give to each its

due weight, and the Senate, caleulated in this,

as itought to be in every Government, to repre-

- sent the wealth of the Nation.

This method of rePresentation was. based on Pinck-_

ney’s view as to the proper relationship. of the new"

. ational government and the States (id. at 112);

* I apprehend the true intention of. the States

in uniting, is to have a firm national Govern-

ment, capable of -effectually executing its acts, ~

and dispensing its benefits and protection. In

it alone can be vested those powers and prerog-

atives which more particularly distinguish a

sovereign State. The members which compose

the superintending Government are to be eon-

sidered merely as eye a great whole, andZ

Le.

ooh ane sufferéd to. retain th jowers sdscasan ts

the administration o e theie tate S The

. idea which has rag 80 Jong and falsely enter-

tained of each being.a ‘sovereign State, must be

iven up;. for it is.absurd to’suppose there can...

more than one sovereignty within a Gov-,:

ernment. > The ‘States should retain nothing

more ‘than that, mere local legislation, which, as

- districts of a general. Government, they can

exercise mote to 5 tha benkfit of their’ ee

-inhabitants “* *. *:

Inv ‘opictailiong, ‘Pinckney ‘comments on the propdeed

_ constitution and states.as one of: his. two objectioits. to

- \. aitthe composition 6f the Senaté. Id.at 127.

‘ In a, letter explaining why he had not signed thé.

- proposed constitution, “Elbridge”. Gerry wrote that

(IIT Farrand 128-129) : ees

‘As the convention: was ‘called for the ‘pole

and express purpose of revising the articles of ~

_ confederation, and reporting. to congress, “and

the several legislatures, such alterations and

_ e

provisions as shall render the ere constitir- .

tion adequate to the “of the. government,

and the preservation of th Pina I did not |

eqneeive that these powers extend to the for-_

mation ofthe plan. ‘proposed : but the conven-

’ tion beitig of a different opinion, I acquiésced

in it, being fully convinced that to preserve the |

union, an efficient government was indispeps-

ably necessary; and that it would’ be difficult to

make proper amexidiménts to the articles of con- -

_, federation. .

‘> “The. constitution proposed ‘hes few if any: fed-

eral features; but is_rather a system of national -

government. Nevértheless, in,‘many respects,

. emendmerits, may be- adapted. to the: ‘‘exigen-

eies of government, and preservation of lib-"

; sctsridige Tiger ee

> 2 :

‘s 2

7 :

‘Letter tothe President of the Senate and Pe of .

7 ; a sd 7 ¥ ; ‘

“the House of Representatives of Massachusetts, Octo- se

_ ber 18, 1787, III Farrand 128-129. '

- On’ October 24, 1787, Madison wrote: J efferson in

detail ecncerning the new constitution f IIt Farrand

131-132) :

“It was’ generally: agvesd that the objects of

the Union ‘could not be secured by any system

es foundedyon- the principle of ‘a confederation of

* Sovereign States. *

Hence was embracef the alternative of a Gov-

ernment which instead of Operating, on the

States, should éperate without their interven-

tion on the individuals composing them; and. ;

- hence the changé in the principle and propor-

tior: of tepresentation. -

Madison explained the: relationship of the. States, to

theederal ‘government (id. at 138-134)! Rae:

The second object, the diie partition of power

between the General & local Governments, was

'. perhaps of all, the most nice and difficult. A -,

few contended for an entire abolition of the

States; Some for indefinite power of. Legislation

in the Congress, with a negative on the laws df

‘the States; some for. such a power without-.a

negative; some for-a limited power of legisla- —

tion, with such a negative; the majority finally.

' * * * Tn the American Constitution the gen- ~

eral authority will be derived entirely from the

subordinate authorities. The—Sena will rep-

‘ resent the States in their political capacity ;° ‘the .

other House will represent the people’ of -the

States in their individual capacity.

Ac to the apportionment of the Senate, Madison said

(id. at 135): ;

"lm

. The remaining “object ‘iieaia. ‘more -embar-

’ rassment, and a greater alarm.for the’ issue of.

ope

- fan <9 ii test

: oe ae .

So: Disectinne agi sdn the anal spelt tga:

'- The little States ‘insisted on retaining their.

equality in both branches, unless a compleat

abolition of the State Governments should take

place? and: made an equality in» the Senate a

sine qua non. The large Stutes on the other

hand urged that as the new Government was .

_ t¢ be drawn principally from the people im-

- mediately and was to operate directly on them®

* not on the States; -and consequently ae the

_- States wd. lose that importance which is now

' “proportioned to the importance of their volun-.

tary compliances with the eo of Con--

Be it was necessary that the representation

*.. + in both Houses should be in proportion. to their

- size. . It ‘ended in the compromise which you:

\° will see, but very much to the dissatisfaction of

. Several members from the large Staten. -

James McHenry and Luther: Martin, delegates at

the convention; described its proceedings to the Mary-

2 land House of Delegates on November. 29. As: to

apportionment of the ne. McHenry said hsp

_, Farrand 147): |

| ) E

That the Rasiiuhighehiven’ aan be ap-

pointed according to. Numbers occasioned a

very long, interesting and seriotis Debate. The

r States warmly contendéd for this Reg- -

ulation and were seriously opposed by the

(* lesser—by the latter it was contended it threw

~ too much power into the hands of the former,

ne and it was answered by the former that Repre-

‘ sentation ought to be according to property, or

~ numbers, and’ in either case they had a right to

such influence as their Situation-gave them, on

* the contrary if each State had an equal voice,

° it would unreasonably threw the whole power

in thé lesser States—in- the end a compromise -

‘. - took place by ‘giving an equal Voice to each

~ * State in the Senate which ’till then the larger:

_ States had contended ought to be formed like’

large and small States at the-convention (III Farrand ~

151-1 ne fess ie

“

__ the other branch by a Representation according

. to numbers.“ , oe a : 3

Martin likewise emphasized the conflict between the

_ -House of Representatives—Virginia, Pennsyl-' .

53): tn,

* * * informing the Confederacy the State of

‘Virginia proposed, and obstinately contended

(tho ‘unsupported by- any other) .

sentation according te Numbers: and the second

resolve now brought forward by an Honourable:

Member. from that State was~formed in the

same spirit that characteriz’d its representa-

tives in their endeavours to increase its powers

and influenee in the Federal Government. * * *

At length the Committee of Detail brought

forward their Résolutions which. gave to the

for repre- .

‘

larger States the sameinequality in-the Senate _

that they now are proposed to have in the

vania and Massachusetts would have oné half—

. all.the Officers and even the President were to .

be chosen by the Legislative: so that these three °

States might have usurped the whole - .

Betts" es

* * * Three parties now appeared in Con-

vention; one were for abolishing all the State

. Governments; anether for such a Government

as would give ay influence to particular States-—

and a -third party. were truly «Federal, and -

acting for general Equallity—They were. for

considering, reforming and amending the Fed-

‘eral Government, from time to time as expe-

r’ence might point out its imperfectiorts, ’till

it could be made competent to-every exigence

of State, and afford at the same time ample

security to Liberty and general Welfare. * * * -

** Since McHenry was not present. for this debate, his descrip-

tion does not come from his own observations. III Farrand |

147, note 1. rs

‘ “This statement is incorrect. See pp. 8, 9, 19, 30, 37, 44, 61

above. 1 eee, Cee

- 706-578 —63-—6 : =

‘>

sinaiplen of opposition were thus

mien and sy ught forward by the 2d. S: re-

~aaahiin the manner of representation, it .was

urged by a Member of Penns mar dee that noth-

ing but necessity had induced the larger States

to give. up in forming. the Confederacy, the

Equality of Representation according to num-

_bers—That all governments flowed from the

People and that their happiness being the end

of governments they ought to have an equal

Representation. On the’contrary it.was urged -

by’ the unhappy Advocates of the Jersey Sys-—

: tem that. people were equally Free, and

- ‘had an equal Voice if they. could meet in a

_ general Assembly of the w ole. . But because

. one Man was st¥onger it afforded no reason=—

. why he might injure another, nor because ‘ong ce

‘, . leagued together, they should have the powe

‘’” to injure five; this would destroy all ateal

|. ialealbe * The History “of all Nations and

sense of Mankind shew, that in all former Con-

' federaejes every State had an equal voice.

Moral History a pane out the necessity that

each State should vote equaliy—In the Cantons.

of Switzerland those of Bene & Lucerne have

more Territory than all the others, yet each

. State has an equal voice in the General Assem-

bly. The Congress in forming the Confederacy

adopted. this rule on tlie principle of Natural

right —Virginia then objected.

‘He then explained his reasons for. opposing the

‘ constitution. Included esis them, he said that (td.

at 155) :

Aotat Government of States ought. to (oe

Federal, and which the object of calling Con-

vention, and not to establish a Natjonal Gov-

ernment, It begins We the -People—And the

wers are made to flow from them-in the first

+ Instance. That in Federal Governments an —

equal voice in each State is essential, as being

.” all in a State of Nature with respect to each

other. Whereas the only figure in this Consti-

tution that has.any resemblance to a federal

- one, ‘is the equality f&tane.* °°

An entry in Ezra‘Stiles’ diary on December 21 has

an account of the convention received from Abraham

' Baldwin, a delegate from Georgia. Stiles stated that

the convention was (III Farrand: 168-169) : |

_ Viz. 1. In a firm foederal Government. * * * .

4. That the Jurisdictions & Govt of each State

shd be left intire & preserved as inviolate as

sible consistent with the coercive Subordifa for |

% preservg the Union with Firmness. 5. Thatthe’ .

3 present foederal Govt was inadequate _to' this: —

-"End. 6. That a certain Portion or Deg. of | .

Dominion’ as to Laws and: Revenue; as well as

to Treaties with foreign Nations, War &

Armies, was necessy to be ceded: by individual:

States to the Authory ‘of the National Council. .

7. That the National Council shd consist of two

- Branches viz, a Senate, & Representatives.

* . That the last .shd be a local Representa appor-

_. tioned to the Property & Number of Inhabi-

tants, as far as, practicable. ‘That this shd be

the.governg Idea. And yet that the Distinction

_ of States shd be preserved in the House of

Representa as well as.in the Senate. 8. That

_ the Senate stand on the Election & Distinction

of States as -at present in Comgress, and tho’ |

_ like the Representa be in some measure pro-

.. portioned to the No of Inhab. yet that besides

. this the Vote-in Senate shd be by States, tho’

in the Hquse of Representa the Vote- shd be

by Plurality of Members present indeéd but not

by States-as States. Hereby two things are

secured, one, that the People at large shall be

efficaciously represented, the other that ‘tho

States as separate States be as also efficaciously

' represented, 9. That these two Branches com-

bined into one Republican Body be the supreme

° i

Legislature & become. vested with the Sover- |

_eignty of the Confederacy w @.

Fre December 28, 1787, to Webruary. a 1788,

Luther Martin’s “Genuine, Information” was ‘printed

in the Maryland Gazette and Biltimore Advertiser.

It consisted of an ‘expanded version of the speech he — |

made to the Maryland House of Delegates on Novem-

ber 29 (see pp.-79-80 above). Martin stated that the be-

_ lievers in a federal system were (III Farrand T79- 7

106)%

* * & for taking | our present federal system as

experience had shown wus that there were de-

feets, to remedy those defects; .as far as ex-

perience had shown that other “powers were

necessary to. the federal’ government, to give

those powers. ‘They mmiiera tHis the object

for which- they were sent by their States, and’

baa their eee a kg from them + aitige

*2.% Those who siiveaea Fénoqueabity of

representation in the first branch] urged, that, .

when the articles of confederation were formed,

‘it was only from necessity and expediency that -

the States were admitted each to have an equal

vote; but, that our situation was now altered,

and therefore those States who considered, it

eontrary to their interest, would no longer abide

by it: They said, no State ought to wish to

have “influence in government, except in- pro-

portion to what it contributes to it; that, if it

contributes but little, it ofght to have but a

small vote; that taxatton and representation er

ought always to go together; that if one State

had sixteen times as many inhabitants as an-

‘other; or was sixteen times as wealthy, it ought

. te have sizteen times: as mamy votes; that an

. inhabitant of Pennsylvania ought to have as

much “ and consequence as an inhabitant.

Fh de Mant mia: ahd A bie bite RGA

; of Jersey or Delaware; that it was conkvex’y to rset

a the feelings of the human mind; what. the large—__—_—__—-—

States would never submit to; that the large |

States would have great. objects, in View, in

‘which they-‘would never permit the smaller

_ States to thwart them; that equaiity of suffrage

*. .was the rotten ‘of the ‘constitution, and

- that this was a happy time to get clear of it.

In finé, that. it was the poison which contam-

inated our whole system, and the source of all

j \‘the evils we experienced. |

This, Sir, is the substance of the ittpinienta,

. if arguments they may be called, which were

used im favor of inequality of suffrage. Those ~

~ who advocated the equality of suffrage, took the .

matter upon the original principals of govern-

“ment; they urged, that all men, considered in a

state of nature, before.’ any government is

formed, are equally free and independent, no

-one having any right or authority to exercise

_ power over another, and this without any re-

gard to difference in personal. strength, under-.

* standing, or wealth. That, when such individn-

als enter’ into. governmeni, thev have each a-

right to an equal voice in its first Formation, and

afterw ards have each a right to an equal vote

in every matter which relates to tteir govern-

ment. That, if it could be done conveniently,

* they. have a -right te exercise it in «person.

. Where it cannot be done in person, but for.

convenience representatives are appointed, to

act for them, every person has a right to: an

equal vote in choosing that representative; who -

’ #-is intrusted to do. for the whole, that which the

whole, if they could assemble, might devin per-

son, and in the transaction of which, each would

have an equal voice. That, if we were to admit,

because a-man was more wise, mere. strong, or

more wealthy, he should be*éntitled to more

votes than another it would be inconsistent. with

the freedom and liberty of that other, and

joe

ee”

would intins him to slavery. inane for i in-

stance, ten individuals in a state of nature,

about to enter into government, nine of whom

_are equally wise, equally strong, and equally

wealthy, the tenth\s

as strong, or ten times as rich; if, for this rea-

' gon, he is to have ten votes: for each vote of

either of the others, the mine might as well

have no “ote at all; since, though the whole .

nine might assent to a measure, yet the vote ~

‘of the tenth would countervail, ‘and set. aside

_all their votes. * * * .

Having thus established these principles, with

respect to the rights of individuals in a state of .

nature, and what is: due to each, on entering |

into government, (principles- established by.

. . every writer on. liberty,) they. preceeded to—

show,, that States,-when once formed, are con-

sidered, with respect to each other, as individ:

uals ina state of. nature; that, like individuals,

each State is considered equally free and equally

independent, the one having no right to exer-

-eise authority over the other, , though more

strong, more wealthy, or. abounding with more

. tnhabitants. That, when a number of - States

unite themselves under a federal government,

‘the same prenciples apply to them, as whenea

_. number of individual men unite themselves

_ ‘under a State government. That every argu-

ment which shows one man ought hot te have é

more votes than another, because he is wiser,

stronger, or wealthier, proves that. one State

- ought “not tohave more.votes than another,

because it is stronger, richer, or more populous.

And,. that by giving one State, or one or two

“States, more-votes than the others, the athers —

thereby are enslaved to such. State or States,

having the greater number of votes, in tlie same

manner as in the case-before put,.of individuals,

when. one has more votes rg the others. . That

_____— --the reason: why each individual man jn, forming | .

a State government should have an equal vote,

ten times as wise,tentimes .

| 8

is heesuse each individual, betees - enters into |

government, is equally. free ‘and independent. -

So each State, when. States enter into a federal

government, are entitled to an. equal vote; be-

cause, before they enter into such federal ‘gov-

ernment, each State was — Sree and »

: ones independent sak taht

* . '

“eee That the .thirteen States are thittoen

- distinct, political. individual existences, -as to

- each ‘other; that the federal government is, or.

ought to be, a government cver these thirteen

political individual existences, which form the

‘members of that government; and that, as the.

largest State, is only: a single ‘individual of this

. government, it ought to have only one vote; the

smallest. State, also being one individual mem-

ber of this government, ought also to have one

vote.

‘It was denied that the equality of suffrage coe

was originally agreed to [in the confederation]

on principles of necessity or expediency; on the .

. eontrary, that it was adopted: on the principles —

_ of the rights of men and .the rights of States,

which were then well known, and which then

‘ influenced our conduct, es now they seem

to be forgotten. '

When -the large States threatened that they would

. never agree to a system of equil ref resentation, Mar-

- , tin said that the small States answe (IIT, Farrand

186): ;

fa “That slavers yi) was the worst that iweie ensue,

and we considered the system proposed to

be the most complete, most abject system of

slavery that the ‘wit of man ever devised, under

the pretence of forming a government for free

‘States.

'_"He-described the issue whether there should be one‘or

two legislative bodies asa conflict between those in

favor of national and cocnene government (ia: at 191-

* 88):

* * * those who. were for two Lattiiehias in the ;

> legislature, a House of Representatives and a

Senate, urged the necessity..of a second branch,

to serve.as a check upon the first, and used- all

_ those trite and comrhon-place arguments which

may be proper and just, when applied to the

formation of a State government, over individ-

uals variously distinguished in their habits and

- manners, fortune and rank * * *, But, on the

- other side, it was prged, that none of those

arguments could with propriety be applied to

the formation of a federal government over a. —

number of independent States; that it is the —

State governments which are to watch over ‘and

“protect the rights of the individual, whether _

‘rich ok poor, or of moderate circumstances; and

- in which the democratic and aristocratic influ- ;

ence or principles are to be so blended, modified,

and checked, as to prevent oppression.and in- -

- jury; that the federal government is to guard

and

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.