Maryland Committee for Fair Representation v. Tawes Appendix B to Brief Amicus Curiae

    N o .  2 9

J n  the £ » p e m e  dj-oari o f the tainted S ta te s
October T erm, 1963

M aryland Committee for F air R epresentation,
ET AL., APPELLANTS

V.

J . M illard T awes, Governor of the State of
M aryland, et al.

ON APPEAL PROM THE MARYLAND COURT OF APPEALS

APPENDIX B TO THE BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE



TABLE OF CONTENTS

1. The history o f the Federal Constitution with regard to page
representation in Congress__________________________  1

a. The Convention_______________________________ 1
b. The Federalist Papers____ ____________________  66
c. Other post-convention materials prior to the

ratifying convention________________________  72
d. The ratifying conventions_____________________  90
e. Materials on the Constitution originating after

the start of the new government____________  105
2. The views of Thomas Jefferson and James Madison on

apportioning state legislatures______________________  114
a. Thomas Jefferson______________________________ 114
b. James Madison________________________________ 117

( i )

706- 578-  63- 1



A PPE N D IX  B

1. T he H istory or the F ederal Constitution w ith  
R egard to R epresentation 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 II. 
Each State, although it could have two to seven dele­
gates to the Congress, had a single vote. Id., Art. Y. 
While the power to make treaties and wage war was 
given to the Congress, most powers were reserved 
to the States. Id. Art. II, Y I. For example, the 
Congress could not impose taxes, but could only ask 
the States to contribute particular sums. Id., Art. 
Y III.

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 called 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.”  
I l l  Records of the Federal Convention (Farrand ed., 
1911),114. On May 18,1787, a few days after the first 
delegates arrived in Philadelphia, Benjamin Franklin 
described the meeting as “ a Convention of the prin­

1 Hereinafter referred to as “Farrand.”
U)



2

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. 
Thus, 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 government2 
in which representation in the legislature would be on 
the basis of population. George Mason, a delegate 
from Virginia, wrote his son on May 20, 1787 (I I I  
Farrand 23) :

The most prevalent idea in the principal 
States seems to be a total alternation of the 
present federal system, and substituting a great 
national council or parliament, consisting of 
two branches of the legislature, founded upon 
the principles of equal proportionate represen­
tation, with full legislative 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 
federal Union.

A few days later, on May 21, Mason wrote almost 
identical words to Arthur Lee. Id. at 24. That same 
day, George Read, a delegate from Delaware, wrote

2 The terms national and federal government were used by 
the 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 iwTTegu- 
lated certain areas but with the other areas remaining under 
the authority of sovereign States.



3

to John Dickinson, another delegate from Delaware, 
of a proposal for a new federal system (id. at 25) :

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 be divided into four classes for 
the purpose of an annual rotation of a fourth 
of the members.3

Read warned that the small States must be careful to 
protect their interests. Ibid. George Mason wrote 
his son on June 1 that (id. at 32) :

The idea I  formerly mentioned 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 
plan * * *.

The convention held its first meeting on May 14, 
1787, but was adjoined because of lack of a quorum. 
I Farrand 1. Soon after regular sessions started on 
May 25th, the convention started to do its work

3 The New York Senate and Assembly were apportioned by 
eligible voters. New York Constitution of 1777, Articles 4, 12.



4

through a Committee of the Whole. On May 31, in 
debate on whether the first branch of the legislature 
should be elected directly by the people, George 
Mason (I  Farrand 48-49) :

* * * argued strongly for an election of the 
larger branch by the people. It was to be the 
grand depository of the democratic principle 
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 Puttier 
of South Carolina stated that he opposed “ deter­
mining the mode of election until the ratio of Repre­
sentation is fixed—if that proceeds on a principle 
favorable to wealth as well as number of Free In­
habitants, I am content to unite wh. Delaware (Mr. 
Read) in abolishing the State Legislatures, and be­
coming one Ration instead of a confedn. of Repub­
lics— ”  [King].4 I  Farrand 144. The next day, in 
continuing the debate on the same proposals, Madison 
said that if the Senate was to be elected by the state 
legislatures (id. at 151) :

* * * we must either depart from the doctrine 
of proportional representation; or admit into 
the Senate a very large number of members. 
The first is inadmissible, being evidently un­
just. The second is inexpedient.

George Mason stated (id. at 161) : 5

4 A ll references to the proceedings o f the constitutional con­
vention are to the official Journal or to Madison’s notes unless 
otherwise indicated. Eufus King o f Massachusetts and Robert 
Yates o f Yew York also made notes o f part o f the proceedings 
to which we will occasionally refer.

5 This quotation is from Mason’s notes o f a speech which 
Farrand believes was given on June 7. I  Farrand 160-161, 
note 8.



5

The treaties, leagues, and 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 individual State in the 
American Union; and thence conclusions 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 
representation of each separate, individual 
State. I f  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 
force * * *.

On June 8th, Gunning Bedford of Delaware com­
plained of attempts (I  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, & Ya. would possess %  of 
the whole. * * * This shows the impossibility 
of adopting such a system as that on the table, 
or any other founded on a change in the prin­
ciple of representation.

The next day, June 9th, the Committee of 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 to the quotas of contribution, or to the 
number of inhabitants, as the one or other rule 
may seem best in different cases. [Yates]

A  long debate ensued. William Paterson of New 
Jersey said that (id. at 177):

* * * the proposition for a proportional rep­
resentation [struck] at the existence of the 
lesser States. He wd. premise however to an 
investigation of this question some remarks on



6

the nature structure and powers of the Con­
vention. The Convention he said wTas formed 
in pursuance of an Act of Congs. that this act 
was recited in several of the Commissions, par­
ticularly that of Massts. which he required to 
be read: That the amendment of the confed­
eracy was the object of all the laws and com­
missions on the subject; that the articles of the 
confederation were therefore the proper basis 
of all the proceedings of the Convention. We 
ought to keep within its limits, or we should 
be charged by our constituents with usur­
pation.

Paterson then stated (id. at 178) :
A  confederacy supposes sovereignty in the 
members composing it & sovereignty supposes 
equality. I f  we are to be considered as a na­
tion, all State distinctions must be abolished, 
the whole must be 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 sovereign, free, and independ­
ent, etc. Sovereignty includes Equality—

I f  then the States in Union are as States still 
to continue in Union, they must be considered 
as Equals—

13 sovereign and independent States can 
never constitute one Nation, and at the same 
Time be States—they may by Treaty make one 
confederated Body—

James Wilson of Pennsylvania, a proponent of a 
strong national government (I Farrand 179-180):

* * * entered elaborately 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 to 
have an equal no. of representatives, and dif­



7

ferent numbers of people different numbers of 
representatives. This principle had been im­
properly violated in the Confederation, owing 
to the urgent circumstances of the time. * * * 
Mr. P. admitted persons, not property to be 
the measure of suffrage. Are not the citizens 
of Pena, equal to those of 1ST. 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 respective constituents hold A 
each other.

The next speaker, Hugh Williamson of North Carolina 
(id. at 180) :

* * * illustrated the cases by a comparison of 
the different States, to Counties of different 
sizes within the same States; observing that 
proportional representation was admitted to be 
just in the latter ease, and could not therefore 
be fairly contested in the former.

Judge David Brearly of New Jersey agreed with Pat­
erson (id. at 181-182) :

I f  the states still remain sovereign, 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. I f  we must have a national govern­
ment, what is the remedy ? Lay the map of the 
confederation on the table, and extinguish the 
present boundary lines of the 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 issues before 
the convention (I I I  Parrand 38-39) :



8

* * * are reducible to two schemes—the first, a 
consolidation of the whole Empire into one re­
public, leaving in the states nothing more than 
subordinate courts for facilitating the admin­
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 
peace and War, together with a Negative upon 
all the Acts of the State legislatures, the first 
idea, I  apprehend, would be impracticable, and 
therefore do not suppose it can be adopted- 
general Laws through a Country embracing so 
many climates, productions, and manners, as 
the United States, would operate many oppres­
sions, & a general legislature would be found 
incompetent to the formation of local ones, as 
a majority would, in every instance, be ignorant 
of, and unaffected by the objects of legisla­
tion * * *. Something like the second will 
probably be formed—indeed I  am certain that 
nothing less than what will give the foederal 
sovereignty a eompleat controul over the State 
Governments, will be thought worthy of dis­
cussion * * *.

On June 11, 1787, a resolution was introduced (I 
Farrand 192-193) :

that the right of suffrage in the first branch of 
the national Legislature ought not to be accord­
ing to the rule established in the articles of con­
federation ; but according to some equitable ratio 
of representation * * * in proportion to the 
whole number of white and other free Citizens 
and inhabitants of every age, sex and condition, 
including those bound to servitude for a term of 
years, and three fifths of all other persons not 
comprehended in the foregoing description, ex­
cept Indians, not paying taxes in each State.

The resolution was passed 9 to 2 by the Committee 
of the Whole with only New Jersey and Delaware op­
posing. Roger Sherman of Connecticut then proposed



9

for the first time the plan which was ultimately 
adopted for the Congress: “  [t]hat in the second
branch of the National Legislature each State have 
One vote.” Id. at 193. Sherman explained (id. at 
204) :

* * * that as the people ought to have the elec­
tion of one of the branches of the legislature, 
the legislature of each state ought 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 resolution 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 to be 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 
whether the legislature should be apportioned accord­
ing to inhabitants or taxes.6 John Rutledge of South 
Carolina (I  Farrand 196) :

* * * proposed that the proportion of suffrage 
in the 1st branch should be according to the 
quotas of contribution. The justice of this 
rule he said could not be contested.

Pierce Butler of South Carolina supported Rutledge’s 
proposal (id. at 204) :

[Mjoney is strength; and every state ought 
to have its weight in the national council in

6 New Hampshire still apportions its Senate by taxes paid. 
The support for this proposition at the convention reflects the 
belief that apportionment by taxes as well as by population was 
equitable, since the former 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 apportion­
ment according to taxes to be unfair.



10

proportion to the quantity it possesses. 
[Yates]

John Dickenson likewise (id. at 196) :
* * * contended for the actual contributions of 
the States as the rule of their representation & 
suffrage in the first branch.

Elbridge Derry of Massachusetts opposed the pro­
posal because he (id. at 201) :

* * * thought property not the rule of repre­
sentation. Why then shd. the blacks, who were 
property in the South, be' in the rule of repre­
sentation more than the cattle & horses of the 
North.

Benjamin Franklin said that he thought that (id. at 
197-198):

* * * the number of Representatives should 
bear some proportion to the number of the 
Represented; and that the decisions shd. be 
by the majority of 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 smaller * * *.

But, Sir, in the present mode of voting by 
States, it is equally in the power of the lesser 
States to swallow up the greater * * *.

On June 14, the North Carolina delegates wrote 
to Governor Caswell that the problem of the con­
vention was to form a “ Union of Sovereign States, 
preserving their Civil Liberties and connected to­
gether by such Tyes as to Preserve permanent & 
effective Governments * * *. I l l  Farrand 46.

The New Jersey 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.”  I l l  Far-



11

rand 611. As to Congress, the plan provided (id. at 
613):

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 Sover­
eignty, Freedom, and Independence than oth­
ers * * *

The next day, Paterson explained the basic assump­
tions of the plan (I  Farrand 250) :

* * * I f  the confederacy was radically wrong, 
let us return to our States, and obtain larger 
powers, not assume them of ourselves. * * * 
Our object is not such a Governmt. as may be 
best in itself, but such a one as our Constit­
uents have authorized us to prepare, and as 
they will approve. I f  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. * * * 
I f  we argue on the fact that a federal compact 
actually exists, and consult the articles of it we 
still find an equal Sovereignty to be the basis of 
it. He reads the 5th. art: o f Confederation 
giving each State a vote— & the 13th. declar­
ing that no alteration shall be made without 
unanimous consent. This is the nature of all 
treaties.

Turning to the question of representation, he said 
(id. at 251) :

I f  the sovereignty of the States is to be main­
tained, the Representatives must be drawn im­
mediately from the States, not from the people: 
and we have no power to vary the idea of equal 
sovereignty.



12

James Wilson replied strongly (id. at 253-254) :
He would not repeat the remarks lie had form­
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 
poison 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 Ration, owing to the inequality 
of representation is at the mercy of its rulers.

Paterson then responded (id. at 259) :
[Representation must be drawn from the 
states to maintain their independency, and not 
from the people composing those states.

The doctrine advanced by a learned gentle­
man from Pennsylvania [Wilson], that all 
power is derived from the people, and that in 
proportion to their numbers they ought to 
participate equally in the benefits and rights of 
government, is right in principle, but unfor­
tunately 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 be 
made by the Virginia plan on these principles. 
The 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 speakers favor­
ing representation by population based their argu­



13

ment on the kind of government which was to be con­
stituted. His notes state as to Robert Lansing of 
Hew York, who favored giving equal representation 
to all the -States (I  Farrand 263-264) :

Lansing
Nath

One Br. to come from 
the people in propn. 
to yr. numbers

All acts of ind. States 
subject to a national 
Negative

Will absorb the State 
sovereignties & leave 
them mere Corpora­
tions, & Electors of 
the natl. Senate—

Fedl.
To come from the 

State Legislatures 
equally & to repre­
sent the States 

To possess enumerated 
powers

Remarks—The confecln. admits the sovereign­
ties of the States—it speaks of an Union—but 
it never meant a consolidation—I f  this had 
been in view NYk never wd. have sent Dele­
gates * * *

Similarly, King’s notes show as to Wilson, who pro­
posed apportionment by population (id. at 265-266) :

Wilson—contrasts the 
two—

Nat.
Legis. of 2 Brs.
The People are the 

basis of Rep—
A repn. according to 

Numbers or Wealth

Fed.
A  Congress or one Br.
The Legislatures of 

the State
The States are equal

1st Where the principle of unequal Represtn. 
prevails there exists a poison wh. eventually 
will destroy it the Government—



14

On June 18, 1787, Alexander Hamilton attacked the 
New Jersey plan (I  Farrand 286) :

Another destructive ingredient in the [New 
Jersey] plan, is that equality of suffrage which 
is so much desired by the small States. It is 
not in human nature that Ya. & the large States 
should consent to it, or if they did that they 
shd. long abide by it. It shocks too much the 
ideas of Justice, and every human feeling

He also submitted to the Committee of the Whole a 
sketch of a plan for the new government.7 The plan 
set the number of Representatives at the start for 
each State apparently on the basis of population. 
After that, the plan provided (I I I  id. at 620) :

The Legislature shall provide for the future 
elections of Representatives, apportioning them 
in each State, from time to time as nearly as 
may be to the number of persons described in 
the 4 § of the Y II  article,8 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, and within every successive period 
of ten years.

The composition of the initial Senate was likewise 
to be prescribed by the constitution but the number 
for each State had not been filled in. As to the appor-

7 This plan was never actually before the convention. I l l  
Farrand 617.

8 Article Y II, Section 4 of the plan provided for the appor­
tionment o f direct taxes among the States by the number of 
inhabitants, except Indians not taxed and three-fifths o f all 
other persons. I l l  Farrand 628.



15

tionment of senators, Hamilton’s plan provided (id. 
at 621):

The Legislature shall provide for the future 
elections 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, if  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 number 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 be appor­
tioned to the respective States in a ratio to the 
respective numbers of their representatives.

I f  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 number of Senators (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 in the 
4. § of the V II  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 prescribed 
for the first Senate.

James Madison returned to the proposal of Judge 
Brearly that the boundaries of the States should be 
redrawn to provide equal population and they should 
be given equal representation in the legislature (I  
Farr and 321) :

It was admitted by both the gentlemen from 
N. Jersey, (Mr. Brearly and Mr. Pater­

706—578— 63- ------ 2



16

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 should be 
thrown into one mass and a new partition be 
made into 13 equal parts.

Madison, however, decided that the plan was imprac­
ticable (id. at 322) :

The prospect of many new States to the West­
ward was another consideration of importance. 
I f  they should come into the Union at all, they 
would come when they contained but but [sic] 
few inhabitants. I f  they shd. be entitled to 
vote according to their proportions o f inhabi­
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 whole.

Alexander Martin of North Carolina said (id. at 324) :
[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 
could never accede to a plan that would intro­
duce an inequality and lay 10 States at the 
mercy of Va. Massts. and Perm a.

On June 20, the convention itself began to consider 
the proposals which had been made 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 point of Representation could receive no 
elucidation from the case of England. The cor­
ruption of the boroughs did not proceed from 
their comparative smallness: but from the ac­
tual fewness of the inhabitants, some of them 
not having more than one or two. a great in­



17

equality existed in the Counties of England. 
Yet the like complaint of peculiar corruption 
in the small ones had not been made.

Roger Sherman again repeated his proposal to have 
two branches of the legislature apportioned differently 
(id. at 342-343):

The disparity of the States in point of size he 
perceived was the main difficulty. But the 
large States had not yet suffered from the 
equality of votes enjoyed by the small ones. 
In all great and general points, the interests of 
all the States were the same. * * * I f  the 
difficulty on the subject of representation can 
not be otherwise got over, he would agree to 
have two branches, and a proportional repre­
sentation in one of them, provided each State 
had an equal voice in the other. This was 
necessary 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 abolish the States (I  
Farr and 355) :

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 Genl. 
Govt., without giving them each a distinct and 
equal vote for the purpose of defending them­
selves in the general Councils.

The debate as to representation continued on June 
25, 1787. Nathaniel Gorham of Massachusetts said 
that (I  Farrand 404-405) :

* * * he inclined to a compromise as to the rule 
of proportion. He thought there was some



18

weight in the objections of the small States. 
I f  Ya. should have 16 votes & Delre. with sev­
eral other States together 16. those from Virga. 
would be more 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 numbers.9 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) :

Let justice be done on this head; let the fund 
be applied fairly & equally to the discharge of 
the general debt, and the smaller States who 
had been injured would listen then perhaps 
to those ideas of just representation which had 
been held out,

James Wilson opposed election of the second branch 
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 is 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 can be preserved in the 2d. as well as in 
the 1st. branch; and the election can be made by 
electors chosen by the people for that purpose.

9 The Massachusetts Constitution of 1780 provided that the 
Senate would be apportioned among the districts on the basis 
of taxes paid. Part II , Ch. I, Sec. 2, Art. I. One member of 
the House o f Representatives was apportioned to each town 
having j£50 voters and an additional member for every 225 addi­
tional voters, except that each existing town was given at least 
one. Part II, Ch. I, Sec. 3, Art. II.



19

However, his amendment to this effect was not 
seconded.

Pierce Butler of South Carolina proposed postponing 
the issue as to the election of second branch, until the 
question of representation was decided. Jantes 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 Pennsylvania opposing. At 
this point in his notes Madison dropped a footnote 
(id. at 408) :

It must be kept in view 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 fundamental 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.

•Tames Wilson of Pennsylvania likewise said at the 
convention (id. at 413) :

Equality of representation can not be estab­
lished, if the second branch is elected by the 
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. 
He said (I  Farrand 437-438) :

[A ]n  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 give up this right of sovereignty, 
yet they had not, and ought not: that the States 
like individuals were in a State of nature



20

equally sovereign & free * * *. [T]lie States 
being equal cannot treat or confederate so 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: 
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 to the equality of 
votes; that the complaints at present run not 
agst. this equality but the want of power; that 
16 members from Va. would be more likely to 
act in concert than a like number formed of 
members from different States; that instead 
of a junction of the small States as a remedy, 
he thought a division of the large States would 
be more eligible.

Yates’ account of this same speech states (id. at 440-
441) :

This principle of equality, when applied to 
individuals, is lost in some degree, when he be­
comes a member of a society, to which 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. I f  such a state confederates, it is 
intended for the good of the whole; and if it 
again 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 themselves into 
societies.

*  *  *  *  *

I f  the foundation of the existing confederation 
is well laid, powers may be added—You may 
safely add a third story to a house where the



21

foundation is good * * *. Price says, that 
laws made by one man or a set of men, and 
not by common consent, is slavery—And it is so 
when applied to states, if you give them an 
unequal representation.

The next day, Luther Martin continued Ms speech 
(I  Parrand 444M45) :

[T]he Genl. Govt, ought to be formed for 
the States, not for individuals: that if the 
States were to have votes in proportion to 
their numbers of people, it would be the same 
thing whether their (representatives) were 
chosen by the Legislatures or the people; the 
smaller States would be equally enslaved * * *.

Yates reports as to this speech (id. at 453-455) :
In a Federal government, a majority of states 
must and ought to tax. In the local govern­
ment of states, counties may be unequal—still 
numbers, not property, govern. What is 
the government now forming over states 
or persons? As to the latter, their rights 
cannot be the object of a general govern­
ment—These are already secured by their 
guardians, the state governments. The general 
government is therefore intended only to pro­
tect and guard the rights of the states as states.

* * * Representation on federal principles 
can only flow from state societies * *.*.

* * * Your general government cannot be 
just or equal upon the Virginia plan, unless 
you abolish state interests. I f  this cannot be 
done, you must go back to principles purely 
federal.

* * * * *
The admission of the larger states into the 

confederation, on the principles of equality, 
is dangerous—But on the Virginia system, it 
is ruinous and destructive. Still it is the true 
interest of all the states to confederate * * *. 

* * * * *



22

I  would rather confederate with any single 
state, than submit to the Virginia plan. But 
we are already confederated, and no power on 
earth can dissolve it but by the consent of all 
the contracting powers—and four states, on 
this floor, have already declared their opposi­
tion to annihilate it * * *.

James Madison, in opposing the motion of Lansing 
that “ the representation of the first branch be accord­
ing to the articles of the confederation” [Yates] (I  
Farrand 455), said that (id. at 446-449) :

[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 con­
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
ceded by Mr. Breerly [sic] & Mr. Patterson 
[sic] themselves. The expedient proposed by 
them was a new partition of the territory of 
the U. States. The fallacy of the reasoning 
drawn from the equality of Sovereign States 
in the formation of compacts, lay in confound­
ing mere Treaties, in which were specified cer­
tain duties to which the parties were to be 
bound, and certain rules by which their subjects 
were to be reciprocally governed in their inter­
course, with a compact by which an authority 
was created paramount to the parties, & making 
laws for the government of them. I f  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 regulations 
perfectly reciprocal. Wd. the case be the same 
if a Council were to be formed of deputies 
from each with authority and discretion, to



23

raise money, levy troops, determine the value 
of coin &c? Would 30 or 40 million of people 
submit their fortunes into the hands, of a few 
thousands? I f  they did it would only prove 
that they expected more from the terror of 
their superior force, than they feared from 
the selfishness of their feeble associates. Why 
are Counties of the same States represented 
in proportion to their numbers? Is it because 
the representatives are chosen by the people 
themselves? so will be the representatives in 
the Nation! Legislature. Is it because, the 
larger have more at stake than the smaller? 
The case will be the same with the larger & 
smaller States. Is it because the laws are to 
operate immediately on their persons & prop­
erties? The same is the case in some degree 
as the articles of confederation stand: the same 
will be the case in a far greater degree under 
the plan proposed to be substituted. * * * By 
the plan proposed a compleat power of taxa­
tion, the highest prerogative of supremacy is 
proposed to be vested in the national Govt. 
Many other powers are added which assimilate 
it to the Govt, of individual States. The 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
tures. * * *

* * * * *
* * * In a word; the two extremes before us 
are a perfect separation & a perfect incorpora­
tion, of the 13 States. In the first case they 
would be independent nations subject to no law, 
but the law of nations. In the last, they would 
be mere counties of one entire republic, subject 
to one common law. In the first case the 
smaller states would have every thing to fear 
from the larger. In the last they would have



24

nothing to fear. The true policy of the small 
States therefore lies in promoting those prin­
ciples & that form of Govt, which will most ap­
proximate the States to the condition of 
Comities.

Yates reports that Madison said (id. at 457) :
There is danger in the idea of the gentleman 

from Connecticut. Unjust representation will 
ever produce it. In the United Netherlands, 
Holland governs the whole, although she has 
only one vote. The counties in Virginia are 
exceedingly disproportionate, and yet the 
smaller has an equal vote with the greater, 
and no inconvenience arises.10

Returning to the analogy of England’s rotten 
boroughs, James Wilson said (I  Farrand 449-450) :

The leading argument of those who contend 
for equality of votes among the States is that 
the States as such being equal, and being repre­
sented not as districts of individuals, but in 
their political & corporate capacities, are en­
titled to an 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 like 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 done to Lon­
don, the true ground of complaint lies with old

10 The last sentence, supporting representation on a non- 
population basis, seems almost surely an error o f the reporter. 
It is inconsistent with the first two sentences o f the same ac- 
count, as well as with numerous other statements made by 
Madison at the convention. Furthermore, it is not reflected in 
Madison’s own detailed and presumably more accurate account 
of his speech which is quoted in the text above.



25

Sarum; for London instead of two which is her 
proper share, sends four representatives to 
Parliament.

Yates says that Wilson stated (■id. at 457) :
I  should be glad to hear the gentleman from 

Maryland explain himself upon the remark of 
Old Sarum, when compared with the city of 
London. This he has allowed 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. 1 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 rotten bor­
oughs were not analogous since (ibid.) :

Individuals, as composing a part of the whole 
of one consolidated government, are there rep­
resented. [Yates]

Roger Sherman argued for concessions by the larger 
State to protect the smaller. Id. at 450. He further 
stated (id. at 457) :

In society, the poor 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 
grounds, secured to the states in the confedera­
tion * * *. [Yates]

Hugh Williamson of North Carolina supported rep­
resentation based on population on the ground (id. at 
456) :

I f  any argument will admit of demonstration, 
it is that which declares, that all men have an 
equal right in society. Against this position, I  
have heard, as yet, no argument, and I could 
wish to hear what could be said against it . 
[Yates]



26

On June 29th, William Samuel Johnson of Connec­
ticut supported Roger Sherman’s proposal that one 
house be apportioned on population and the other be 
apportioned equally among the States. In doing so, 
he explicitly based this proposal on a compromise as 
to the nature of the new government (I  Par rand 461- 
462) :

The controversy 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 con­
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 (id. at 476- 
477) :

Those who contend for an equality of Votes 
among the States, define a State to be a mere 
association of men & then say these Associa­
tions are equal—on the other hand those who 
contend for a Representation in proportion to 
numbers, 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 proportion 
to their Number of Inhabitants—both reason 
justly from yr. premises—we must then com­
promise—let both parties be gratified—let one 
House or Branch be formed by one Rule & & 
[sic] the other by another.



27

Madison continued to oppose the compromise be­
cause it over-emphasized the sovereignty of the States 
under the new Constitution and because equal repre­
sentation by States was unjust (I  Farr and 463-464):

[T]he mixed nature of the Cfovt. ought to be 
kept in view; but thought too much stress was 
laid on the rank of the States as political so­
cieties. There was a gradation, he observed 
from the smallest corporation, with the most 
limited powers, to the largest empire with the 
most perfect sovereignty. He pointed out the 
limitations on the sovereignty of the States, as 
now confederated * * *. Under the proposed 
Govt, the powers of the States will be much 
farther reduced. According to the views of 
every member, the Genl. Govt, will have powers 
far beyond those exercised by the British 
Parliament when the States were part of the 
British Empire. 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 system to the reproaches & evils which 
have resulted from the vicious representation 
in G.B.

He entreated the gentlemen representing the 
small States to renounce a principle wch. was 
confessedly unjust, which cd. never be admitted, 
& if  admitted must infuse mortality into a 
Constitution which we wished to last forever.

Yates reports concerning this speech that Madison 
said (id. at 472) :

I f  the power is not immediately derived from 
the people, in proportion to their numbers we 
may make a paper confederacy, but that will 
be all.



28

Alexander Hamilton likewise supported apportion­
ment based solely on population (I  Farrand 465-466) :

Mr. Hamilton observed that individuals form­
ing political Societies modify their rights dif­
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 smaller 
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. Hothing could be more preposterous or 
absurd than to sacrifice the former to the latter. 
It has been sd. that if  the smaller States re­
nounce their equality, they renounce at the same 
time their liberty. The truth is it is a contest 
for power, not for liberty. Will the men com­
posing the small States be less free than those 
composing the larger. The State of Delaware 
having 40,000 souls will lose power, if  she has 
Yl0 only of the votes allowed to Pa. having 
400,000: but will the people of D el: 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 
certain degree of attachment; and that this 
principle might have a certain influence in pub­
lic affairs. He thought however that this might 
by some precautions be in a great measure ex­
cluded : and that no material inconvenience 
could result from it, as there could not be any 
ground for combination among the States whose 
influence was most dreaded. * * * Ho consid­
erable inconvenience had been found from the



29

division of the State of N. York into different 
districts, of different sizes.11

Yates gives this account of Hamilton’s speech (id. at 
473) :

The question, after all is, is it our inter­
est in modifying this general government to 
sacrifice individual rights to the preservation 
of the rights of an artificial being, called states? 
There can be no truer principle than this— 
that every individual of the community at large 
has an equal right to the protection of govern­
ment. I f  therefore three states contain a ma­
jority of the inhabitants of America, ought they 
to lie governed by a minority? * * * [The 
larger States] are to surrender their rights— 
for what? for the preservation of an artificial 
being. We propose a free government—Can 
it be so if partial distinctions are main­
tained? * * * In the state of New York, five 
counties from a majority of representatives, 
and yet the government is in no danger, be­
cause the laws have a general operation. The 
small states exaggerate their danger, and on 
this ground contend for an undue proportion 
of power.

Elbridge Gerry of Massachusetts also agreed with 
Madison (I  Farrand 467) :

[W ]e never were independent States, were not 
such now, & never could be even on the xuin- 
ciples of the Confederation. The States & the 
advocates for them were intoxicated with the 
idea of their sovereignty. He was a member 
of Congress at the time the federal articles 
were formed. The injustice of allowing each

11 Both houses of the New York legislature were then appor­
tioned on the basis o f eligible voter's. New York Constitution 
o f 1777, Articles 4, 12.



30

State an equal vote was long insisted on. He 
voted for it, but it was 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
scure. He read those passages in the articles 
of Confederation which describe 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, i.e., equal repre­
sentation by States, by a vote of 6 to 4 with one State 
divided. By the converse vote, the convention adopted 
the resolution reported by the Committee o f the Whole 
“ that the rule of suffrage in the 1st branch ought 
not to be according to that established 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) :

* * * 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 against 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 voices 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



31

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 plighted faith.

Abraham Baldwin of Georgia opposed Ellsworth’s 
motion on the ground that the second house should 
represent property. (Id. at 469-470.) George Read 
of Delaware agreed in part with Madison and Hamilton 
(id. at 471) :

I f  [the government was to be] more national, 
I  would be for a representation proportionate 
to population. [Yates]

dames Wilson, on June 30th, strongly opposed Ells­
worth’s motion to allow each State an equal vote in 
the second branch. He rejected threats that conven­
tion would otherwise fail (I  Farrand 482-484) :

I f  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. Taking the opinions to be the same 
on this point, * * * the question will be shall 
less than *4 of the II. States withdraw them­
selves from the Union, or shall more than %  
renounce the inherent, indisputable, and un­
alienable rights of men, in favor of the artificial 
systems of States. I f  issue must be joined, it 
was on this point he would ehuse to join it. 
The gentleman from Connecticut [Ellsworth] 
in supposing that the prepondenaney secured to 
the majority in the 1st. 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 controul in all cases 
whatsoever, the sentiments and interests of the

706t-578— 63------- 3



32

majority. Seven States will controul six; seven 
States according to the estimates that had been 
used, composed 2%o of the whole people. It 
would be in the power of less than y3 to over­
rule %  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 ? W ill our honest Constituents be satis­
fied with metaphysical distinctions? W ill they, 
ought they to be satisfied with being told that 
one third, compose the greater number of 
States. The rule of suffrage ought on every 
principle to be the same in the 2d. as in the 1st. 
branch. * * * I f  the motion should be agreed to, 
we shall leave the U.S. fettered precisely as 
heretofore; with the additional"ifetification of 
seeing the good purposes of ye fair representa­
tion of the people in the 1st. branch, defeated 
in 2d. Twenty four will still controul sixty six.

Ellsworth replied that (id. at 484-485) :
The capital objection of Mr. Wilson “ that the 
minority will rule the majority” is not true. 
The power is given to the few to save them 
from being destroyed by the many. I f  an 
equality of votes had been given to them in both 
branches, the objection might have had weight. 
* * * No instance [of a confederacy] 12 has 
existed in which an equality of voices has not 
been exercised by the members of it. We are 
running from 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 States, to favor it. I f  security be all 
that the great States wish for the 1st. branch 
secures them. * * * He appealed again to the

12 Far rand has taken this phrase from the account o f Yates.
I  Farrand 484, note 5.



33

obligations of tbe federal pact which was still 
in force, and which had been entered into with 
so much solemnity, persuading himself that 
some regard would still be paid to the plighted 
faith under which each State small as well as 
great, held an equal right of suffrage in the 
General Councils.

Supporting Wilson, Madison said that speakers had 
urged {id. at 486) :

* * * continually that an equality of votes in the 
2d. branch was not only necessary to secure the 
small, but would be perfectly safe to the large 
ones whose majority in the 1st. branch was an 
effectual bulwark. But notwithstanding this 
apparent defence, the Majority of States might 
still injure the majority of people. 1. they 
could obstruct the wishes and interests of the 
majority. 2. they could extort measures, re­
pugnant to the wishes & interest of the ma­
jority. 3. They could impose measures ad­
verse thereto; as the 2d branch will probly 
exercise some great powers, in which the 1st 
will not participate.

William Richardson Davie of North Carolina 
agreed with Ellsworth, opposing the resolution ap­
proved by the Committee of the Whole (I  Farrand 
487-488):

The Report of the Committee allowing the Leg­
islatures to choose the Senate, and establishing 
a proportional 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 are 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
tive of the States, looked like bringing us back 
to Congs. again, and shutting out all the advan­



34

tages expected from it. * * * He thought that 
in general there were extremes on both sides. 
We were partly federal, partly national in our 
Union. And he did not see why the Govt, 
might not in some respects operate on the 
States, in others on the people.

Attempting to meet Davie’s objection, Wilson {id. at 
488) :

* * * admitted the question concerning the 
number of Senators, to be embarrassing. I f  
the smallest States be allowed one, and the 
others in proportion, the Senate will certainly 
be too numerous. He looked forward to the 
time when the smallest States will contain 
100,000 souls at least. Let there be then one 
Senator in each for every 100,000 souls, 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 Franklin then summarized the debate 
(I  Farrand 488) :

The diversity of opinions turns on two 
points. I f  a proportional representation takes 
place, the small States contend that their liber­
ties will be in danger. I f  an equality of votes 
is to be put in its place, the large States say 
their money will be in danger. When a broad 
table is to be made, and the edges of planks do 
not fit the artist takes a little from both, and 
makes a good joint. In like manner here both 
sides must part with some of their demands, in 
order that they may join in some accommodat­
ing proposition.

To resolve the impasse, he proposed the following 
resolution {id. at 489):

That the Legislatures of the several States 
shall choose & send an equal number of Dele­



35

gates, namely who are to compose the 2d. branch 
of the General Legislature—

However, while the resolution also gave each State 
an equal voice on several important issues involving 
the States such as issues affecting their sovereignty, 
voting strength was to be calculated by taxes paid 
with regard to appropriations bills. Benjamin 
Franklin explained that (id. at 499) :

Let the senate be elected by the states equally— 
in all acts of sovereignty and authority, let the 
votes be equally taken—the same in the appoint­
ment 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 rejected all proposals for giving each 
State an equal vote and said that he was (I  Farrand 
489-490):

filled with astonishment that if  we were con­
vinced that every man in America was secured 
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 America was within our reach, 
we should renounce the blessing, from an at­
tachment to 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. Lie 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 as proposed in the 
motion.



36

Also opposing both Ellsworth’s and Franklin’s com­
promises, Gunning Bedford of Delaware supported 
complete equality between the States {id. at 490-492) :

[Tjhere was no middle way between a perfect 
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 
purity than the rest of mankind. 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 the 
Confederation.

Yates says that Bedford stated {id. at 501-502) :
Let us then do what is in our power—amend 
and enlarge the Confederation but not alter the 
Federal system. [Emphasis in original.]

On July 1st, George Washington, the chairman of 
the convention, wrote David Stuart that (I I I  Far- 
rand 51):

the primary cause of all our disorders lies in 
the different State Governments, and in the 
tenacity of that power which pervades the 
whole of their systems. Whilst independent 
sovereignty is so ardently contended for, whilst 
the local views of each State and seperate in­
terests by which they are too much govern’d



37

will not yield to a more enlarged scale of 
politicks * * *.

The convention voted on July 2, 1787, 5 to 5, with 
one State divided, on Ellsworth’s motion to give each 
State one vote in the Senate. Connecticut, New York, 
New Jersey, Delaware, and Maryland voted for the 
resolution and Georgia was divided. I  Parrand 510. 
While he said that “  [e] quality of suffrage in the 
states is wrong”  [Yates] (id. at 516), Charles Cote- 
worth Pinckney of South Carolina proposed that a 
committee be appointed of one member from each 
State to devise a compromise. Luther Martin did not 
object but warned that “no modifications whatever 
could reconcile the Smaller States to the least diminu­
tion of their equal Sovereignty.”  Id. at 511. El- 
bridge deny, who favored the population basis of ap­
portionment, supported the committee because “ [w]e 
must make concessions on both sides.” Id. at 515. 
The convention approved the creation of the commit­
tee 9 States to 2.

On July 2, Phineas Bond wrote Lord Carmarthen 
that, the problem was (I I I  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 or by substituting new ones— 
whether by continuing a power in each State 
to regulate its internal policy, or to abolish all 
separate establishments, and to form one grand 
federal authority, is a matter of consideration 
which 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  Parrand 522) :

Many of the members, impressed with the util­
ity of a general government, connected with it



38

the indispensible necessity of a representation 
from the states according to their numbers and 
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 
apportioned 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 each State shall have an equal vote in the 
second house. Id. at 523.

On July 5th, the convention debated the committee’s 
report. Madison continued to oppose any compro­
mise deviating from apportionment based on popu­
lation (I  Farrand 3^1-528) :

He conceived that the Convention was reduced 
to the alternative of either departing from jus­
tice in order to conciliate the 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 not himself hesitate as to the option he 
ought to make. The Convention with 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, which would be es- 
poused_ & supported by the enlightened and 
impartial part of America, & which they could 
themselves vindicate & urge.



39

Yates’ report of this speech states (id. at 535) :
We are driven to an unhappy dilemma. Two 
thirds of the inhabitants of the union are to 
please the remaining one third by sacrificing 
their essential rights.

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
cording to their property.

In contrast, Elbridge (ferry supported the compro­
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 of these ideas too closely. I f  
no compromise should take place wdiat will be 
the consequence. A secession he foresaw would 
take place; for some gentlemen seem decided 
on it; two different plans will be proposed, and 
the result no man could foresee. I f  we do not 
come to some agreement among ourselves some 
foreign sword will probably do the work for us.

George Mason likewise said that (id. at 533) :
There must be some accomodation on this point, 
or we shall 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 in particular to the first 
clause of the resolution which stated that one repre­
sentative shall be apportioned to every 40,000 people. 
Gfouverneur Morris of Pennsylvania objected to this 
provision both because it was based on population 
rather than wealth and because the Atlantic Coast 
states could be out-voted in the future (I  Parr and 
533-534):

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 
of the matter would nevertheless prove that 
property was the main object of Society. * * * 
He thought the rule of representation ought to 
be so 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 to be made to prevent the maritime States 
from being hereafter outvoted by them. He 
thought this might be easily done by irrevo­
cably fixing the number of representatives 
which the Atlantic States should 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 
which they were to possess their lands.13

Agreeing, John Rutledge of South Carolina said that 
(id, at 534) :

The gentleman last up had spoken some of 
his sentiments precisely. Property was cer­

13 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.



,41

tainly the principal object of Society. I f  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 revenue by the inhabitants of each State 
respectively * * *.

Rutledge’s motion was rejected with only South Car­
olina supporting it.

On July 6th Gouverneur Morris (I  Farrand 540) :
* * * moved to commit [back to the commit­
tee] so much of the Report as relates to “ 1 
member for every 40,000 inhabitants”  His 
view was that they might absolutely fix the 
number for each State in the first instance; 
leaving the Legislature at liberty to provide for 
changes in the relative importance of the States, 
and for the case of new States.

This view was opposed by Nathaniel Gorham of Mas­
sachusetts who (ibid.) :

* * * apprehended great inconveniency 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.

Elbridge Gerry (id. at 541) :
* * * favored the Commitment and thought 
that Representation ought to 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 could not be safely fixed, since in a 
century & a half our computed increase of population



42

would carry the number of representatives to an enor­
mous excess, ’ ’ Rufus King said that wealth not popu­
lation should he the basis of apportionment (I  Far- 
rand 541) :

* * * ye. number of 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 to be 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, K. West of the 
Ohio. Congs. by one of their ordinances have 
impoliticly laid it out into 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 contain it is computed more than 35,000 
souls, 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 also supported 
wealth 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. I f  there were no other 
objection the changeableness of the standard 
would be sufficient. He concurred with those 
who thought some balance was necessary be­
tween 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 it on.



On the other hand, Charles Pinckney {id. at 542) :
* * * 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 changeable in their amount; too 
difficult to be adjusted; and too injurious to 
the noncommercial States. The number of in­
habitants appeared to. him the only just & prac­
ticable rule.

William Richardson Davie of North Carolina pro­
posed a compromise between population and. state 
equality {ibid .):

He seemed to think that wealth or property 
ought to be represented in the 2d. branch; and 
numbers in the 1st. 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. James Wilson then (id. at 
542) :

* * * signified that his views in agreeing to the 
Commitmt. was that the Come might consider 
the propriety of adopting a scale 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 
report concerning the origination of tax and appro­
priation bills, George Mason said {id. at 544) :

He was a friend to proportional representation 
in both branches; but supposed that some points 
must be yielded for the sake of accommodation.



4 4

When debate began on July 7th, Elbridge Gerry 
said that the issue of representation was (I  Farrand 
550) :

* * * the critical question. He had rather 
agree to it than have no accommodation. A 
Govemt. 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 vote 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 551) :

* * * considered the mode & rule of representa­
tion in the 1st. 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 equality of votes in the 2d. 
branch. There was no other ground of accom­
odation. His resolution was fixt. He would 
meet the large States on that Ground and no 
other. For himself he should vote agst. the 
Report, because it yielded too much [the origi­
nation of appropriations and revenue bills in 
the 1st house],

Gouverneur Morris was also opposed to the report 
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 in the first quality 
to protect individuals; in the second, the States. 
But in what quality was it to protect the aggre­
gate interest of the whole. Among the many



45

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 that the great objects of 
the nation had been sacrificed constantly to 
local views; in like manner as the general in­
terests of States had been sacrificed to those 
of the Counties. * * * They were originally 
nothing more than colonial corporations. On 
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 
now exist, and that the large States are at 
liberty 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 minority 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]

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 
the legislature could change this apportionment “upon 
the principles of * * * wealth and number of inhabi­
tants.”  I  Earrand 558. Roger Sherman inquired 
(id. at 559) :

* * * on what principles or calculations the 
Report was founded. It did not appear to



46

correspond with any rule of numbers, or of 
any requisition hitherto adopted by Congs.

Nathaniel Gorham responded that (id. at 559-560) :
The number of blacks & 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 & propriety may require, Two 
objections prevailed agst the rate of 1 member 
for every 40,000 inhts. The 1st. was that the 
Representation would soon be too numerous: 
the 2d. that the Westn. States who may have 
a different interest, might if  admitted on that 
principle by degrees, out-vote the Atlantic. 
Both these objections are removed. The num­
ber will be small in the first instance and may 
be continued so, and the Atlantic States having 
ye. Govt, in their own hands, may take care of 
their own interest, by dealing out the right of 
Representation in safe proportions to the West­
ern States.

The convention then approved 9 States to 2 (New 
York and New Jersey opposing) the clause allowing 
the legislature to apportion in the future on the basis 
of wealth and inhabitants. Id. at 560.

Debate started on a motion to refer the first clause 
of the report concerning 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 neces­
sary to return to the rule of numbers, but 
that the Western States stood on different foot­
ing. I f  their property 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 be 
equally rated.



47

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 was not altogether disregarded by the 
Come. Where 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 
so vice versa.

George Read of Delaware (id. at 561) :
* * * asked why Georgia was allowed 2 mem­
bers, when her number of inhabitants had stood 
below that of Delaware.

Defending the apportionment, Gouverneur Morris re­
plied (ibid.) :

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 Rati. Legislature 
should please, a pretext would never be want­
ing to postpone alterations, and keep the power 
in the hands of those possessed of it. He was 
in favor of the commitmt, 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 popu­
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

70 6-57 S— OR----------4



48

regard negroes slaves in no light but as prop­
erty. They are no free agents, have no per­
sonal liberty, no faculty of acquiring property, 
but on the contrary are themselves property, & 
like other property entirely at the will of the 
Master. Has a man in Yirga. a number of 
votes in proportion to the number of his slaves? 
and if Negroes are not represented in. the States 
to which they belong, why should they be repre­
sented in the Genl. Govt. What is the true 
principle of Representation? It is an expedi­
ent by which an assembly of certain individls. 
chosen by the people is substituted in place of 
the inconvenient meeting of the people them­
selves.

Seeing the anomaly of Paterson’s position, Madison 
pointed out (id. at 562) :

* * * that his doctrine 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 people 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 according 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, including slaves.

The convention approved 9 States to 2 referring the 
first clause of the report to a new committee. Ibid.

The next day, July 10th, Edmund Randolph sub­
mitted a plan to conciliate the small States on the 
issue of the apportionment of the second branch. 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



49

while “ in all other eases the right of suffrage be pro­
portioned according to an equitable rule of repre­
sentation.”  I l l  Farrand 56. Also, on July 10th, the 
committee on representation reported a proposal for 
a new initial apportionment of the 1st house, this time 
having 65 members instead of the former 56. I id. 
at 563. John Rutledge of South Carolina made a 
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 (ibid.) :

N. Hamshire has probably more than 120,000 
Inhabts. and has an extensive country of toler­
able fertility. Its inhabts therefore may be ex­
pected to increase fast. He remarked that the 
four Eastern States having 800,000 souls, have 
I/, 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 circumstances, and be dis­
satisfied. He believed 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.

After the amendments proposed by Rutledge and 
others were rejected, the convention approved the 
committee’s apportionment 9 States to 2. Id. at 570.

Governor Randolph then proposed an amendment 
(I  Parr and 570-571) :

that in order to ascertain the alterations in the 
population & wealth of the several States the 
Legislature should be required to cause a cen­
sus, and estimate to be taken within one year 
after its first meeting; and every years
thereafter—and that the Legislre. arrange the 
Representation accordingly.



50

The amendment was opposed by Gouverneur Morris 
on the ground that it fettered {id. at 571) :

* * * the Legislature 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. Lie wished there­
fore to put it in the power of the latter to keep 
a 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 
possible, but he did not think it probable unless 
the reasons agst. a revision of it were very 
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 578-579) :

The greater the difficulty we find in fixing a 
proper rule of Representation, the more unwill­
ing ought we to be, to throw the task from our­
selves, on the Genl. 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 1st. branch. According to the 
present population of America, the Nortlm. part 
of it had. 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. I f  the S. States 
therefore should have %  of the people of 
America within their limits, the Northern will



51

hold fast the majority of Representatives. *4 
will govern the %. The S. States will com­
plain: but they may complain from generation 
to generation without redress. Unless some 
principle therefore which will do justice to them 
hereafter shall be inserted in the Constitution, 
disagreeable as the declaration was to him, he 
must declare he could neither vote for the sys­
tem here nor support it, in his State. Strong 
objections had been drawn from the danger to 
the Atlantic interests from new Western States. 
Ought we to sacrifice what we know to be right 
in itself, lest it should prove favorable to States 
which are not yet in existence. I f  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 numbers of in­
habitants ; though not always a precise standard 
of wealth was sufficiently so for every substan­
tial purpose.

Hugh Williamson of North Carolina proposed a sub­
stitute to Randolph’s resolution (id. at 579):

“ that in order to ascertain the alternations that 
may happen in the population & 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 1st 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 (id. at
579-580):

* * * observed that the ratio fixt for the 1st. 
[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
nounced ; and that it was consequently the duty 
of the Convention to secure its renunciation



52

when justice might so require; by some con­
stitutional provisions. I f  equality between great 
& small States be inadmissible, because in that 
case unequal numbers of Constituents wd. be 
represented by equal numbers of votes; was 
it not equally inadmissible that a larger & 
more populous district of America should here­
after have less representation, than a smaller & 
less populous district. I f  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 admis­
sion of wealth in the estimate by which Repre­
sentation should be regulated. The Western 
States will not be able to contribute in propor­
tion 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 
1st. meeting of the Legislature, and of every 

years thereafter, the Legislature shall pro­
portion the Representation according to the 
principles of wealth & population”

Roger Sherman opposed considering wealth (ibid.) :
Mr. Sherman thought the number of people 

alone the best rule for measuring wealth as well 
as representation; and that if the Legislature 
were to be governed by wealth, they would be 
obliged to estimate it by numbers.

Returning to his fear of the West, Gouvemeur Mor­
ris argued much like those who now claim that rural 
areas are entitled to no representation because rural



53

people are better at running a government (I  Farrand 
583):

The Busy haunts of men not the remote wilder­
ness, was the proper School of political Talents. 
I f  the Western people get the power into their 
hands they will ruin the Atlantic interests. 
The Back members are always most averse to 
the best measures. He mentioned the ease of 
Pena, formerly. The lower part of the State 
had ye. power in the first instance. They kept 
it in yr. own hands. & the country was ye. better 
for it.14

Madison opposed any proposals designed to limit west­
ern representation (id. at 584-585) :

The 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. Yirga. 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 for 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

14 While Morris praised Pennsylvania for preventing the 
newly settled area from attaining power through malapportion­
ment, it is 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 o f new States.



54

mitted that in different climates, under differ­
ent forms of Govt, and in different stages of 
civilization the inference was perfectly just. 
He would admit that in no situation numbers of 
inhabitants were an accurate measure of wealth. 
He contended however that in the IJ. States it 
was sufficiently so for the object in contem­
plation.

George Mason supported the requirement of periodi­
cal reapportionment. He {id. at 586) :

* * * Agreed with Mr. Govr. Morris that we 
ought to leave the interests of the people to the 
Representatives of the people: 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 people 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.

The convention adopted 6 States to 4 Williamson’s 
proposal of a census for free inhabitants. Ibid. 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 representation on inhabitants and wealth. 
William Samuel Johnson of Connecticut contended (I  
Farrand 593):

* * * that wealth and population were the true, 
equitable rule of representation; but he con­
ceived that these two principles resolved them­
selves into one; population being the best 
measure of wealth.



On the other hand, Rufus King replied that (id. at 
595) :

* * * he had still two powerful objections agst. 
tying down the Legislature to the rule of num­
bers. 1. they were at this time an uncertain 
index of the relative wealth of the States. 2. if 
they were a just index at this time it can not be 
supposed always to continue so.

Charles Pinckney then proposed that slaves be equal 
to whites in ascertaining representation (id. at 596) :

This he urged was nothing more than justice. 
The blacks are the labourers, the peasants of 
the Southern States: they are as productive of 
pecuniary resources as those of the Northern 
States. They add equally to the wealth, and 
considering money as the sinew of war, to the 
strength of the nation.

The convention adopted a resolution 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 years. Id. at 597.

Edmund Randolph proposed on July 13th that the 
resolution passed on July 9th providing for the future 
apportionment o f representatives on the basis of 
wealth and numbers be reconsidered. I  Farrand 603. 
He submitted a resolution deleting the reference to 
wealth. During the debate on this resolution James 
Wilson strongly supported apportionment on the basis 
o f population (id. at 605-606) :

Conceiving that all men wherever placed have 
equal rights and are equally entitled to confi­
dence, he viewed without apprehension the 
period when a few States should contain the 
superior number of people. The majority of 
people wherever found ought in all questions 
to govern the minority. I f  the interior Coun­
try should acquire this majority they will not 
only have the right, but will avail themselves



56

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 
on ours. Further, if numbers be not a proper 
rule, why is not some better rule pointed out. 
No 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 discussion of a 
measure of wealth all 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 could not agree that prop­
erty was the sole or the primary object of 
G-overnt. & Society. The cultivation & improve­
ment of the human mind was the most noble 
object. With respect to this object, as well as 
to other personal rights, numbers were surely 
the natural & precise measure of Representa­
tion. 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 
1st. branch vary his opinion as to the impro­
priety of letting a vicious principle into the 2d. 
branch.

Randolph’s resolution passed 9 States to 0 with Dela­
ware divided. Id. at 606.

On July 14th, Elbridge Gerry offered, and Rufus 
King seconded, the following resolution (I I  Farrand 
3 ):

that in order to secure the liberties of the States 
already confederated, the number of Represen­
tatives in the 1st branch of the States which 
shall hereafter be established shall never exceed



57

in number, the Representatives from such of 
the States as shall accede to this confederation.

Gerry explained that he apprehended 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 Country. To guard agst. these con­
sequences, he thought it necessary to limit the 
number of new States to be admitted into the 
Union, in such a manner, that they should never 
be able to outnumber the Atlantic States.

Roger Sherman opposed the resolution (ibid.) :
We are providing for our posterity, for our 
children and our grand Children, who would 
be as likely to be citizens of new Western 
States, as of the old States. On this considera­
tion alone, we ought to make no such discrimi­
nation as was proposed by the motion.

Gerry replied that (ibid.) :
There was a rage for emigration from 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.

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. II  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 stood as %  agst. the equality,



58

and Yg only in favor of it. This fact would ere 
long be known, and it will appear that this 
fundamental point has been carried by >/3 agst. 
% . What hopes will our constituents enter­
tain 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 recon­
sidered. The equality of votes was a point of 
such critical 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 invoked 
earlier in the convention (ibid.) :

He had rather there should be two Confedera­
cies, than one founded on any other principle 
than an equality of votes in the 2d branch at 
least.

Charles Pinckney then moved (id. at 5) :
* * * that instead of an equality of votes the 
States should be represented in the 2d branch 
as follows: jST.H. by 2 members, Mas 4. R.I. 1. 
C on i. 3. X.Y. 3. N.J. 2. Pa. 4. Del. 1. Md. 
3. Yirga. 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.

Rufus King continued to demand apportionment 
based on population in both houses. He (I I  Par- 
rand 6-7) :

* * * considered the proposed Government as 
substantially and formally, a General and Ra­
tional Government over the people of America. 
There never will be a case in which it will act as 
a federal Government on the States and not on



59

the individual Citizens. And is it not a clear 
principle that in a free Govt, those who are to 
he the objects of a Govt, ought to influence the 
operations of it ? What reason can be assigned 
why the same rule of representation sd. not pre­
vail in the 2d branch as in the 1st? He could 
conceive none. On the contrary, every view of 
the subject that presented 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 viccious 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
ciples. He preferred the doing of nothing, to 
an allowance of an equal vote to all the States. 
It would he better he 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 
rather than Pinckney’s resolution (id. at 7-8):

The Convention had been much divided in 
opinion. In order to avoid the consequences 
of it, an accomodation had been proposed. A 
Committee had been appointed; and though 
some of the members of it were averse to an 
equality of votes, a Report has been made in 
favor of it. It is agreed on all hands that Con­
gress are nearly at an end. I f  no Accommoda­
tion takes place, the Union itself must soon be 
dissolved. * * * He thought the small States 
had made a considerable concession in the ar­
ticle of money bills, and that they might nat­
urally expect some concessions on the other side. 
Prom this view of the matter he was compelled 
to give his vote for the Report taken all to­
gether.



60

James Madison (I I  Farrand 8 -9 ):
* * * expressed his apprehensions that if the 
proper foundation of Government was de­
stroyed, by substituting 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 confederation 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 unnecessary ; and that 
the representatives ought therefore to bear a 
proportion to the votes which their constituents 
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 in proportion to the 
people: yet in the former it ought to be accord­
ing to the number of States. I f  there was any 
solidity in this distinction he was ready to 
abide by it, if there was none it ought to be 
abandoned. In all cases where the Genl. Gov- 
emt. 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 Gongs, now 
act on them, let the States be represented & 
the votes be equal. This was the true ground 
of compromise if there was any ground at all. 
But he denied that there was any ground. He 
called for a single instance in which the Genl. 
Govt, was not to operate on the people in­
dividually. The practicability of making laws, 
with coercive 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. 1. the 
minority could negative the will of the majority 
of the people. 2. they could extort measures 
by making them a condition of their assent to 
other necessary measures. 3. they could ob­
trude measures on the majority by virtue of the 
peculiar powers which 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 
perpetuity it would give to the preponderance 
of the Northn. agst. the Southn. Scale was a 
serious consideration.

James Wilson agreed with Madison (id. at 10) :
A vice in the Representation, like an error in 
the first concoction, must be followed by disease, 
convulsions, and finally death itself. The jus­
tice of the general principle of proportional 
representation has not in argument at least 
been yet contradicted.

Pinckney’s motion was rejected 6 to 4 with Pennsyl­
vania, Maryland, Virginia, and South Carolina in the 
minority. Id. at 11.

On July 16, 1787, the convention passed, 5 States to 
4 (Pennsylvania, Virginia, South Carolina, and Geor­
gia), with Massachusetts divided, a report from a com­
mittee providing for equality of representation among 
the States in the Senate. I I  Parrand 15. Edmund 
Randolph then proposed adjournment to allow “ some 
conciliatory experiment” to be devised. Id. 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.

151



62

Madison reports a meeting of the larger States the 
following day, July 17th (I I  Farrand 19-20) :

* * * for the purpose of consulting on the 
proper steps to be taken in consequence of the 
vote in favor of an equal Representation in the 
2d. branch, and the apparent inflexibility of the 
smaller States on that point—Several members 
from the latter States also attended. * * * It 
appeared indeed that the opinions of the mem­
bers who disliked the equality of votes differed 
so much as to the importance of that point, and 
as to the policy of risking a failure of any 
general act of the Convention by inflexibly 
opposing it. Several of them supposing that 
no good Govemnt, could or would be built on 
that foundation, and that as a division of 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 firm 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 Convention as a body, tho’ 
decided by a bare majority of States and by a 
minority of the people of the U. States. It is 
probable that the result of this consultation 
satisfied the smaller States that they had noth­
ing to apprehend from a Union of the larger, 
in any plan whatever agst. the equality of votes 
in the 2d. branch.

This finally settled the issue of representation in Con­
gress, an issue on which the convention had nearly 
floundered.

Alexander Martin, a delegate from North Carolina, 
wrote Governor Caswell on July 27th that “ it is no 
small task to bring to a conclusion the great objects



03

of a United Government viewed in different points 
by thirteen Independent Sovereignties; United Amer­
ica must have one general Interest to be a Nation, 
at the same time preserving the particular Interest 
of the Individual States.”  I l l  Farrand 64-65. A 
few days later on August 1st, Pierce Butler of South 
Carolina wrote that the purpose of the convention 
was “ to form a stronger Constitution on strict Feed- 
era! Principles, for the Governmt. of the whole * * *.”  
Id. at 67.

On August 8th, during debate on the residence re­
quirement for election to the House of Representa­
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 1st. branch, the people at large, not 
the States are represented”  (emphasis in original). 
I I  Parrand 217. That same day, the report of the 
Committee on Detail amended without debate or 
objection the section concerning the apportionment 
of the 1st branch so as to provide “ that each State 
shall have one representative at least.”  Id. 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 malapportionment, 
controlled state government from running Congres­
sional elections to serve their own interests (id. at 
241):

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—5TS— 63--------5



64

able that the Counties having the power in the 
former case would secure it to themselves in the 
latter.

On August 13th, George Mason supported the pro­
posal that revenue bills must originate in House of 
Representatives and cannot be modified in Senate on 
the ground that (II  Farrand 273-274) :

1. The Senate did not represent the people, but 
the States in their political character. It was 
improper therefore that it should tax the 
people. * * * The House of Lords does not rep­
resent nor tax the people, because not elected 
by the people. * * * the pursestrings should be 
in the hands of the Representatives of the 
people.

Likewise on August 23d, James Madison, in the 
debate on the Senate’s power as to treaties, said that 
“ the Senate represented the States alone. * *
I I  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 suggested as the reason for his posi­
tion that a minority of the States might control the 
newly settled areas through malapportionment (id. at 
463) :

* * * Martin, urged the unreasonableness of 
forcing & guaranteeing 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 gov­
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 Virginia may still hold fast the dominion 
over them.



65

Much of the opposition on September 8th to the pro­
posal that treaties must be ratified by two thirds of 
the Senate arose from the fact that a minority of the 
people will elect a majority of the Senators. Hugh 
Williamson of North Carolina (I I  Far rand 548) :

* * * remarked that Treaties are to be made in 
the branch of the Govt, where there may be a 
majority of the States without a majority of the 
people. Eight men may be a majority of a 
quorum, & should not have the power to decide 
the conditions of peace.

Elbridge Gerry similarly stressed {ibid.) :
* * * the danger of putting the essential rights 
of the Union in the hands of so small a number 
as a majority of the Senate, representing per­
haps, not one fifth of the people.

On September 17, 1787, the Convention transmitted 
the proposed constitution to the Congress of the Con­
federation. I I  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 by the conventions 
of nine States, the resolution stated that the Congress 
of the Confederation shall set a day and place 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 of these States, to secure all 
rights of independent sovereignty to each, 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.”  Id. at 667.



CO

The transmission of the proposed 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 Confederation in order to give 
greater power to the federal government at the ex­
pense of the independence of the States while at the 
same time not totally discarding the existing system 
by creating a national system in which state sov­
ereignty was ended.

b. The Federalist Papers.—In Number 22 of the 
Federalist Papers, which was published on December 
14, 1787, Alexander Hamilton attacked at some length 
equality of representation by States in the Conti­
nental Congress in his enumeration of the evils and 
weaknesses of the Confederation {The Federalist 
(Cooke ed., 1961),15 pp. 138-139) :

The right of equal suffrage among the States 
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 Connecticut, or New-York; and to Delaware, 
an equal voice in the national deliberations with 
Pennsylvania or Virginia, or North-Carolina. 
Its operation contradicts that fundamental 
maxim 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 common sense. It may happen that 
this majority of States is a small minority of 
the people of America ; and two thirds of the

15 Hereinafter referred to as uThe Federalist.”  ■



67

people of America, could not long be persuaded, 
upon the credit of artificial distinctions and 
syllogistic subleties, to submit their interests to 
tlie management and disposal of one third. The 
larger States would after a while revolt from 
the idea of receiving the law from the 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 sacrifice the desire of equality. * * *

It may be objected to this, that not seven 
but nine States, or two thirds of 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 
vote between States of the most unequal dimen­
sions and populousness; nor is the inference 
accurate in point o f fact; for we can enumerate 
nine States which contain less than a majority 
of the people: and it is constitutionally possible, 
that these nine may give the vote.

But this is not all; what at first sight may 
seem a remedy, is in reality a poison. To give a 
minority a negative upon the majority (which 
is always the ease where more than a majority 
is requisite to a decision) is in its tendency to 
subject the sense of the greater number to that 
of the lesser number. Congress from the non- 
attendance of a few States have been frequently 
in the situation of a Polish Diet, where a single 
veto has been sufficient to put a stop to all their 
movements. A  sixtieth part of the Union, 
which is about the proportion of Delaware and 
Rhode-Island, has several times been able to 
oppose an intire bar to its operations. This is 
one of those refinements which in practice has 
an effect, the reverse of what is expected from 
it in theory. * * * In those emergencies of a 
nation, in which the goodness or badness, the 
weakness or strength of its government, is of



68

the greatest importance, there is commonly a 
necessity for action. The public business must 
in some way or other go forward. I f  a pertina­
cious minority can controul the opinion of a 
majority respecting the best mode of conduct­
ing it; the majority in order that something 
may be done, must conform to the views of the 
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
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 some 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 concurrence of the 
necessary number of votes, kept in a state of 
inaction. Its situation must always savour of 
weakness—sometimes border upon anarchy.

Hamilton described in Humber 32 the balance be­
tween the States and the federal government under 
the proposed constitution {The Federalist, pp. 199- 
200) :

An intire consolidation of the States into one 
complete 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 act exclusively 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 
authority to the Union; where it granted in one



09

instance an authority to the Union and in an­
other prohibited the States from exercising the 
like authority; and where it granted an au­
thority to the Union, to which a similar author­
ity in the States would be absolutely and to­
tally contradictory and repugnant.

In Number 39, James Madison similarly described the 
new 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
tion, and on the same principle, as they are in 
the 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 States, 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 gov­
ernment is federal, not national. * * *

*  *  *  *  *

The proposed Constitution therefore is in 
strictness neither a national nor a federal con­
stitution; but a composition of both. In its 
foundation, it is federal, not national; in the 
sources from which the ordinary powers of the 
Government are drawn, it is partly federal, and 
partly national: in the operation of these pow­
ers, it is national, not federal: In the extent of 
them again, 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 continued 
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



70

left in the enjoyment of their sovereign and in­
dependent jurisdiction.

See also id. at 261. Likewise, in Number 45, Madison 
said that “ the States will retain under the proposed 
Constitution a very extensive portion of active sov­
ereignty * * *”  (id. at 310) and that (id. at 311-312) : 

The State G-overnments may be regarded as 
constituent 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 must in all cases 
have a great share in his appointment, and will 
perhaps in most cases of themselves determine 
it. 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 much under the influence of that class of 
men, whose influence over the people obtains 
for themselves an election into the State Legis­
latures. 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 too obsequious, than too overbearing 
towards them. On the other side, the compon­
ent parts of the State Governments will in no 
instance be indebted for their appointment to 
the direct agency of the federal government, 
and very little if at all, to the local influence of 
its members.

In Number 54, Madison explained the basis for the 
apportionment of the House of Representatives ( The 
Federalist, pp. 366, 368) :

It is not contended that the number of people 
in each State ought not to be the standard for



71

regulating the proportion of those who are to 
represent the people of each State. * * * [T]he 
rule is understood to refer to the personal 
rights of the people, with which it has a natural 
and universal connection. * * *

* * * * *
* * * It is agreed on all sides, that numbers 

are the best scale 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 basic principle of apportioning one of the 
two houses of the legislature in their detailed exposi­
tion of the proposed constitution.

In contrast, Madison apparently felt compelled to 
explain the apportionment of the Senate at length in 
Number 62 {The Federalist, pp. 416-417):

The equality of representation in the senate 
is another point, which, being evidently the re­
sult of compromise between the opposite pre­
tensions of the large and the small states, does 
not call for much discussion. I f  indeed it be 
right that among a people thoroughly incor­
porated into one nation, every district ought to 
have a proportional share in the government; 
and that among independent and sovereign 
states bound together by a simple league, the 
parties however unequal in size, ought to have 
an equal share in the common councils, it does 
not appear to be without some reason, that in 
a compound republic partaking both 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 superfluous 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 “ of a spirit of amity, and that



72

mutual deference and concession which the pe­
culiarity of our political situation rendered in­
dispensable.”  A  common government with 
powers equal to its objects, is called for by the 
voice, and still more loudly by the political sit­
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 smaller states. The only option then for 
the former lies between the proposed govern­
ment and a government still more objection­
able. Under this alternative the advice of 
prudence must be, to embrace the lesser evil; 
and instead of indulging a fruitless anticipation 
of the possible mischiefs which may ensue, to 
contemplate rather the advantageous conse­
quences which may qualify the sacrifice.

In 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 preserving that residu­
ary sovereignty. So far the equality ought to 
be no less acceptable to the large than to the 
small states; since they are not less solicitous 
to guard by every possible expedient against 
an improper consolidation of the states into 
one simple republic.

And in Number 58 Madison summarized the differ­
ence in functions between the House and Senate: “ one 
branch of the legislature is a representation of citi­
zens; the other of the states * * Id. at 392.

c. Other Post-Convention Materials Prior to the 
Ratifying Conventions.—George Mason, who did not 
sign the proposed Constitution, wrote on a draft of 
the Constitution as one of his reasons for this action 
that the Senate had “ the power of altering all money 
bills, and of originating appropriations of money, and 
the salaries of the officers of their own appointment,



73

in conjunction with the President of the United 
States, although they are not the representatives of 
the people or amenable to them.”  I I  Farrand 638.

Pierce Butler, a delegate to the convention from 
South Carolina, wrote to Weedon Butler on October 8 
describing the proposed constitution (I II  Farrand 
102-103):

We, in many instances took the Constitution of 
Britain, when in its purity, for a model, and 
surely We could not have a better. We tried 
to avoid what appeared to Us the weak parts of 
Antient as well as Modern Republicks. * * * 
View the system then as resulting from a 
spirit of Accommodation to different Interests, 
and not the most perfect one that the Deputies 
cou’d devise for a Country better adapted for 
the reception of it than 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 General Government 
to Consist of two Branches of Legislature and 
an Executive to be vested in One person for 
four years, but elligible again—the 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 years. 
The Second to Consist of two members 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 
the 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



74

May 29. He attacked the weakness of the Constitu­
tion, including as one cause (I I I  Farrand 108) :

The inequality of the principle of Representa­
tion, where the largest and most inconsiderable 
States have an equal vote in the affairs of the 
Union * * *.

Because of the many defects in the existing system, 
he proposed that the Convention (ibid.) :

* * * consider the subject de novo. That they 
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 knowledge 
of the temper of the people, and the resources 
of the States, will be most 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 and oppressive.

Pinckney 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 Councils, each State ought to have 
a weight in proportion to its importance; and 
no State is justly entitled to a greater. A 
Representation is the sign of the reality. Upon 
this principle, however abused, the parliament 
of Great Britain is formed, and it has been 
universally 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 incautiously 
contract a disease that has been consuming 
them. Nothing, but necessity, could have in­
duced Congress to ratify a Confederation upon 
other principles. It certainly was the opinion



75

of the first Congress, 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 power, at that time, to pro­
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 members ought to contribute 
according to their abilities, and have a vote in 
proportion to their importance. But if each 
must have a vote, it can be defended upon no 
other ground, than that of each contributing 
an equal share of the public burdens: either 
would be a perfect system. The present must 
ever continue irreconcilable to justice, * * *

The Senate, I propose to have elected by the 
House of Delegates, upon proportionable prin­
ciples, in the manner I have stated, which, 
though rotative, will give that body a sufficient 
degree of stability and independence. The dis­
tricts, into which the Union are to be divided, 
will be so apportioned, as to give to each its 
due weight, and the Seriate, calculated in this, 
as it ought to be in every Government, to repre­
sent the wealth of the Ration.

This method of representation was based on Pinck­
ney’s view as to the proper relationship of the new 
national 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 con­
sidered merely as parts of a great whole, and



76

only suffered to retain the powers necessary to 
the administration of their State Systems. The 
idea which has been so long and falsely enter­
tained of each being a sovereign State, must be 
given up; for it is absurd to suppose there can 
be 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 more to the benefit of their particular 
inhabitants * * *.

In concluding, Pinckney comments on the proposed 
constitution and states as one of his two objections to 
it the composition of the Senate. Id. at 127.

In a letter explaining why he had not signed the 
proposed constitution, Elbridge Gerry wrote that 
(I I I  Farrand 128-129) :

As the convention was called for “ the sole 
and express purpose of revising the articles of 
confederation, and reporting to congress, and 
the several legislatures, such alterations and 
provisions as shall render the federal constitu­
tion adequate to the exigencies of government, 
and the preservation of the union,” I  did not 
conceive that these powers extend to the for­
mation of the plan proposed: but the conven­
tion being of a different opinion, I  acquiesced 
in it, being fully convinced that to preserve the 
union, an efficient government was indispens­
ably necessary; and that it would be difficult to 
make proper amendments to the articles of con­
federation.

The constitution proposed has few if any fed­
eral features; but is rather a system of national 
government. Nevertheless, in many respects, 
1 think it has great merit, and, by proper 
amendments, may be adapted to the “ exigen­
cies of government, and preservation of lib­
erty.”



77

Letter to the President of the Senate and Speaker of 
the House of Representatives of Massachusetts, Octo­
ber 18,1787, I I I  Farrand 128-129.

On October 24, 1787, Madison wrote Jefferson in 
detail concerning the new constitution (I I I  Farrand 
131-132) :

It was generally agreed that the objects of 
the Union could not be secured by any system 
founded on the principle of a confederation of 
Sovereign States. * * *

Hence was embraced the alternative of a Gov­
ernment which instead of operating, on the 
States, should operate without their interven­
tion on the individuals composing them; and 
hence the change in the principle and propor­
tion of representation.

Madison explained the relationship of the States to 
the federal government (id. at 133-134) :

The second object, the due 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 of 
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 
for a limited power without the negative. * * *

* * * In the American Constitution the gen­
eral authority will be derived entirely from the 
subordinate authorities. The Senate will rep­
resent the States in their political capacity; the 
other House will represent the people of the 
States in their individual capacity.

As to the apportionment of the Senate, Madison said 
(id. at 135) :

The remaining object created more embar­
rassment, and a greater alarm for the issue of



7 S

the Convention than all the rest put together. 
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 States on the other 
hand urged that as the new Government was 
to be drawn principally from the people im­
mediately and was to operate directly on them, 
not on the States; and consequently as the 
States wd. lose that importance which is now 
proportioned to the importance of their volun­
tary compliances with the requisitions of Con­
gress, 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 States.

James McHenry and Luther Martin, delegates at 
the convention, described its proceedings to the Mary­
land House of Delegates on November 29. As to 
apportionment of the legislature, McHenry said (I I I  
Farrand 147) :

That the Representatives should be ap­
pointed according to Numbers occasioned a 
very long, interesting and serious Debate. The 
Larger States warmly contended 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, 
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 throw the whole power 
in the 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



the other branch by a Representation according 
to numbers.10

Martin likewise emphasized the conflict between the 
large and small States at the convention (I I I  Parrand 
151-153) :

* * * in forming the Confederacy the State of 
Virginia proposed, and obstinately contended 
(tho unsupported by any other)”  for repre­
sentation according to 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 influence in the Federal Government. * * * 

At length the Committee of Detail brought 
forward their Resolutions which gave to the 
larger States the same inequality in the Senate 
that they now are proposed to have in the 
House of Representatives—Virginia, Pennsyl­
vania and Massachusetts would have one 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 
power * * *.

* * * Three parties now appeared in Con­
vention; one were for abolishing all the State 
Governments; another for such a Government 
as would give an 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
rience might point out its imperfections, ’till 
it could be made competent to every exigence 
of State, and afford at the same time ample 
security to Liberty and general Welfare. * * * 16 17

16 Since McHenry was not present for this debate, his descrip­
tion does not come from his own observations. I l l  Farrand 
147, note 1.

17 This statement is incorrect. See pp. 8, 9, 19, 30, 37, 44, 61 
above.

706- 578— 63— 6



80

When the principles of opposition were thus 
formed and brought forward by the 2d. S: re­
specting the manner of representation, it was 
urged by a Member of Pennsylvania, 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 all people were equally Free, and 
had an equal Voice if  they could meet in a 
general Assembly of the whole. But because 
one Man was stronger it afforded no reason 
why he might injure another, nor because ten 
leagued together, they should have the power 
to injure five; this would destroy all equal- 
lity * * *. The History of all Nations and 
sense of Mankind shew, that in all former Con­
federacies every State had an equal voice. 
Moral History points out the necessity that 
each State should vote equally—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 the principle of Natural 
right—Virginia then objected.

He then explained his reasons for opposing the
constitution. Included among them, he said that (id.
at 155) :

* * * a Government of States ought to be 
Federal, and which the object of calling Con­
vention, and not to establish a National Gov­
ernment. It begins We the People—And the 
powers 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



8 1

other. Whereas the only figure in this Consti­
tution that has any resemblance to a federal 
one, is the equality of Senate * * *.

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 (I I I  Parrand 168-169) :

* * * pretty unanimous in the following Ideas, 
viz. 1. In a firm foederal Government. * * * 
4. That the Jurisdictions & Govt of each State 
shd be left intire & preserved as inviolate as pos­
sible consistent with the coercive Subordina for 
preservg the Union with Firmness. 5. That the 
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 Congress, 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 House of Representa the Vote shd be 
by Plurality of Members present indeed but not 
by States as States. Hereby two things are 
secured, one, that the People at large shall be 
efficaciously represented, the other that the 
States as separate States be as also efficaciously 
represented. 9. That these two Branches com­
bined into one Republican Body be the supreme



82

Legislature & become vested with the Sover­
eignty of the Confederacy * * *.

From December 28, 1787, to February 8, 1788, 
Luther Martin’s “ Genuine Information” was printed 
in the Maryland Gazette and Baltimore 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 (I I I  Farrand 179- 
186):

* * * for taking our present federal system as 
the basis of their proceedings, and, as far as 
experience had shown us that there were de­
fects, 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 considered this the object 
for which they were sent by their States, and 
what their States expected from them * * *.

-X* * * * *
* * * Those who advocated [inequality 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 
contrary 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 ought to have but a 
small vote; that taxation and representation 
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 
to have sixteen times as many votes;  that an 
inhabitant of Pennsylvania ought to have as 
much weight and consequence as an inhabitant



83

of Jersey or Delaware; that it was contrary to 
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 equality of suffrage 
was the rotten part of the constitution, and 
that this was a happy time to get clear of it. 
In fine, that it was the poison which contam­
inated our whole system, and the source of all 
the evils we experienced.

This, Sir, is the substance of the arguments, 
if arguments they may be called, which were 
used in 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 individu­
als enter into government, they have _ each a 
right to an equal voice in its first formation, and 
afterwards have each a right to an equal vote 
in every matter which relates to their govern­
ment. 'That, if it could be done conveniently, 
they have a right to exercise it in person. 
Where it cannot be clone 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 do in 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, more strong, or 
m.ore wealthy, he should be entitled to more 
votes than another it would be inconsistent with 
the freedom and liberty of that other, and



84

would reduce him to slavery. Suppose, for 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 is ten times as wise, ten times 
as strong, or ten times as rich; if, for this rea­
son, he is to have ten votes for each vote of 
either of the others, the nine might as well 
have no vote 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 proceeded to 
show, that States, when once formed, are con­
sidered, with respect to each other, as individ­
uals in a state of nature; that, like individuals, 
each State is considered equally free and equally 
independent, the one having no right to exer­
cise authority over the other, though more 
strong, more wealthy, or abounding with more 
inhabitants. That, when a number of States 
unite themselves under a federal government, 
the same principles apply to them, as when a 
number of individual men unite themselves 
under a State government. That every argu­
ment which shows one man ought not to have 
more votes than another, because he is wiser, 
stronger, or wealthier, proves that one State 
ought not to have 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 others 
thereby are enslaved to such State or States, 
having the greater number of votes, in the same 
manner as in the case before put, of individuals, 
when one has more votes than the others. That 
the reason why each individual man in forming 
a State government should have an equal vote,



85

is because each individual, before he 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 equally free and 
equally independent. * * *

* * * * *
* * * That the thirteen States are thirteen 

distinct political individual existences, as to 
each other; that the federal government is, or 
ought to he, a government over 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 
was originally agreed to [in the confederation] 
on principles of necessity or expediency; on the 
contrary, 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, although now they seem 
to be forgotten.

When the large States threatened that they would 
never agree to a system of equal representation, Mar­
tin said that the small States answered (I I I  Farrand 
186):

That slavery was the worst that could ensue, 
and we considered the systenn 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 as a conflict between those in



8 8

• favor of national and federal government (id. at 191- 
193) :

* * * those who were for two branches 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 common-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 urged, 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 or 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 protect the States and their rights, and to 
regulate their common concerns; that a federal 
government is formed by the States, as States, 
that is, in their sovereign capacities, in the same 
manner as treaties and alliances are formed; 
that sovereignties, considered as such, cannot 
be said to have jarring interests or principles, 
the one aristocratic, and the other demo­
cratic * * *.

It was urged, that the government we were 
forming was not in reality a federal, hut a 
national government; not founded on the prin­
ciples of the preservation, but the abolition or 
consolidation of all State governments;  that we 
appeared totally to have forgot the business for 
which we were sent, and the situation of the 
country for which we were preparing our sys­
tem—That we had not been sent to form a



87

government over the inhabitants of America, 
considered as individuals; that as individuals, 
they were all subject to their respective State 
governments, which government would still re­
main, though the federal government should 
be dissolved * * *.

Whereas it was urged, that the principles 
on which a federal government over States 
ought to be constructed and ratified, are the 
reverse; that instead of the legislature con­
sisting of two branches, one branch was suffi­
cient, whether examined by the dictates of 
reason, or the experience of ages; that the 
representation, instead of being drawn from 
the people at large, as individuals, ought to be 
drawn from the States as States, in their sov­
ereign capacity; that, in a federal government, 
the parties to the compact are not the people, 
as individuals, but the States, as States; and 
that it is by the States as States, in their 
sovereign capacity, that the system o f govern­
ment ought to be ratified, and not by. the people, 
as individuals.

It was further said, that, in a federal gov­
ernment over States equally free, sovereign, 
and independent, every State ought to have an 
equal sha,re in making the federal laws or regu­
lations, in deciding upon them, and in carrying 
them into execution; neither of which was the 
ease in this system, but the reverse; the States 
not having an equal voice in the legislature, 
nor in the appointment of the executive, the 
judges, and the other officers of government. 
It was insisted, that, in the whole system, there 
was but one federal feature,—the appointment 
of the senators by the States in their sovereign 
capacity, that is, by their legislatures, and the 
equality of suffrage in that branch; but it was 
said, that this feature was only federal in 
appearance.



88

Martin strongly emphasized that the proposed con­
vention created a national, not a federal, government 
(id. at 195):

Nay, so far were the friends of the system from 
pretending that they meant it, or considered it 
as a federal system, that on the question being 
proposed, “ that a union of the States, merely 
federal, ought to be the sole object of the exer­
cise of the powers vested in the convention,”  it 
was negatived by a majority of the members, 
and it was resolved “ that a national government 
ought to be formed.”  Afterwards the word 
“ national”  was struck out by them, because they 
thought the word might tend to alarm; and al­
though, now, they who advocate the system 
pretend to call themselves federalists, in con­
vention the distinction was quite the reverse; 
those who opposed the system were there con­
sidered and styled the federal party, those who 
advocated it, the antif ederal.

Robert Yates and John Lansing, both delegates to 
the convention from New York, reported to the gover­
nor their opposition to the constitution because it was 
a “ consolidation of the United States into one govern­
ment.”  I l l  Uarrand 245. They explained (id. at 
245-246):

Nor could we suppose, that if it had been the 
intention of the legislature, to abrogate the 
existing confederation, they would, in such 
pointed terms, have directed the attention of 
their delegates to the revision and amendment 
of it, in total exclusion of every other idea.

Reasoning in this manner, we were of 
opinion, that the leading feature of every 
amendment, ought to be the preservation of the 
individual states, in their uncontrouled con­
stitutional rights * * *.

Luther Martin explained in the Maryland Journal 
of March 18th his ideas on the marked distinction



89

between the state and federal governments (I II  Far- 
rand 284) :

In a state government, I  consider all power 
flowing immediately from the people in their 
individual capacity, and that the people, in 
their individual capacity, have, and ought to 
have the right of choosing delegates in a state 
legislature, the business of which is to make 
laws, regulating their concerns, as individuals, 
and operating upon them as such; but in a 
federal government, formed over free states, 
the power flows from the people, and the right 
of choosing delegates belongs to them only 
mediately through their respective state gov­
ernments which are the members composing the 
federal government, and from whom all its 
power immediately proceeds; to which state 
governments, the choice of the federal dele­
gates immediately belongs.

In May 1788, John Dickinson, in one of his Letters 
of Fabius, defended the equal representation of the 
States in the Senate (I II  Farrand 304) :

There is another improvement equally deserv­
ing regard, and that is, the varied representa­
tion of sovereignties and people in the constitu­
tion now proposed.

It has been said, that this representation was 
a mere compromise.

It was not a mere compromise. The equal 
representation of each state in one branch of 
the legislature, was an original substantive 
proposition, made in convention, very soon 
after the draft offered by Virginia, to which 
last mentioned state United America is much 
indebted not only in other respects, but for her 
merit in the origination and prosecution of this 
momentous business.

The proposition was expressly made upon 
this principle, that a territory of such extent 
as that of United America, could not be safely



90

and advantageously governed, but a combina­
tion of republics, each retaining all the rights 
of supreme sovereignty, excepting such as ought 
to be contributed to the union; that for the se­
curer preservation of these sovereignties, they 
ought to be represented in a body by themselves, 
and with equal suffrage; and that they would 
be annihilated, if both branches of the legisla­
ture were to be formed of representatives of 
the people, in proportion to the number of in­
habitants in each state.

d. The Ratifying Conventions.—In the Massachu­
setts convention, various delegates emphasized the 
sharp distinction between the function of the Senate 
and the House of Representatives. Fisher Ames, 
later a Congressman, stated that (I I  The Debates in 
the Several State Conventions on the Adoption of 
the Federal Constitution (Elliot editor, 2d ed., 1854),18
p. 11) :

The senators will represent the sovereignty of 
the states. The representatives are to repre­
sent the people.

Christopher Gore similarly remarked (id. at 18) :
The Senate represents the sovereignty of the 
states; the House of Representatives the people 
of the United States.

And E. Pierce said {id. at 22) :
[T]he federal representatives, who are to form 
the demoeratical part of the general govern­
ment, are to be a check on the representatives 
of the sovereignty, the senate * * *.

In the debate on the constitution of the Senate, 
Fisher Ames defended the provision that Senators 
serve for six years (I I  Elliot 46) :

The senators represent the sovereignty o f the 
states; in the other house, individuals are rep­

18 Hereinafter referred to as “ Elliot.”



91

resented. * * * [Senators] are in the quality 
of ambassadors of the states * * *. I f  they 
would be brought by that means more imme­
diately under the influence of the people, then 
they will represent the state legislatures less, 
and become the representatives of individuals. 
This belongs to the other house. The absurdity 
of this, and its repugnancy to the federal prin­
ciples of the Constitution, will appear more 
fully, by supposing that they are to be chosen 
by the people at large. I f  there is any force 
to the objection to this article, this would be 
proper. But whom in that case, would they 
represent?—Not the legislatures of the states, 
but the people. This would totally obliterate 
the federal features of the Constitution.

Continuing this debate, Rufus King, a delegate to the 
Congress under the Confederation and to the federal 
convention, noted {id. at 47) :

[A ]s the Senate preserved the equality of the 
states, their apportionment is equal.

In the debate on Article I, Section 4, which gives 
Congress power to regulate federal elections, George 
Cabot, later a United States Senator, stated (I I  
Elliot 25-26) :

[A ] free and equal representation is the best, 
if not the only foundation upon which a free 
government can be built; and, consequently, that 
the greatest care should be taken in laying it. 
* * * I consider the democratic branch of the 
national government, the branch chosen imme­
diately for the people, as intended to be a check 
on the federal branch, which latter is not an 
immediate representation of the people of 
America, and is not chosen by them, but is a 
representation of the sovereignty of the indivi­
dual states, and its members delegated by the 
several state legislatures * * *. [Emphasis in 
original.]



92

Immediately thereafter Theophilus Parsons, a leading
attorney, said (id. at 26-27) :

In the Congress, not only the sovereignty of the 
states is represented in the Senate, but, to bal­
ance their power, and to give the people a suit­
able and efficient check upon them, the federal 
representatives are introduced into Congress. 
The legislatures of the several states are the 
constituents of the Senate, and the people are 
the constituents of the Representatives * * *. 
[A  state legislature] might make an unequal 
and partial division of the states into districts 
for the election of representatives or they might 
even disqualify one third of the electors. With­
out these powers in Congress, the people can 
have no remedy; but the 4th section provides 
a remedy, a controlling power in a legislature, 
composed of senators and representatives of 
twelve states, without the influence of our com­
motions and factions, who will hear impartially 
and preserve and restore to the people their 
equal and sacred rights of election.

Continuing the debate on this provision, Dr. Charles
Jarvis argued (id. at 29) :

The right of election, founded on the principle 
of equality, was, he said, the basis on which the 
whole superstructure was erected; this right was 
inherent in the people; it was unalienable in its 
nature, and it could not be destroyed without 
presuming a power to subvert the Constitution, 
of which this was the principal; and by recur­
ring to the 2d section, it would appear that 
“ representatives and direct taxes shall be appor­
tioned among the several states according to 
their respective n u m b e r s it equally appeared 
that 30,000 inhabitants were entitled to send a 
representative, and that wherever this number



1)3

was found, they would have a right to be repre­
sented in the federal legislature.19

Judge Francis Dana, who was a member of the Con­
gress under the Confederation and who was chosen 
to attend the federal convention but was unable to 
do so, also defended Article I, Section 4 (I I  Elliot 
49) :

The legislature of Rhode Island has lately 
formed a plan to alter their representation to 
corporations, which ought to be by numbers. 
Look at Great Britain, where the injustice of 
this mode is apparent. Eight tenths of the 
people there have no voice in the elections. A 
borough of but two or three cottages has a 
right to send two representatives to Parlia­
ment, while Birmingham, a large and populous 
manufacturing town, lately sprung up, cannot 
send one. The legislature of Rhode Island are 
about adopting this plan, in order to deprive 
the towns of Newport and Providence of their 
weight, and that thereby the legislature may 
have a power to counteract the will of a ma­
jority of the people.

Rufus King immediately agreed with Dana in sup­
port of Article I, Section 4 {id. at 50-51) :

In Connecticut, they do not choose by num­
bers, but by corporations. Hartford, one of 
their largest towns, sends no more delegates 
than one of their smallest corporations, each 
town sending two, except latterly, when a town 
was divided. The same rule is about to be 
adopted in Rhode Island. The inequality _ of 
such representation, where every corporation

19 Delegates Holmes and Widgery pointed out that the Con­
stitution did not provide for a representative for every 30,000 
people but a maximum o f one representative for every 30,000 
people. I I  Elliot 30, 32.



94

would have an equal right to send an equal 
number of representatives, was apparent. In 
the Southern States, the inequality is greater. 
By the constitution of South Carolina, the city 
of Charleston has a right to send thirty repre­
sentatives to the General Assembly; the whole 
number of which amounts to two hundred. The 
back parts of Carolina have increased greatly 
since the adoption of their constitution, and 
have frequently attempted an alteration of this 
unequal mode of representation; but the mem­
bers from Charleston, having the balance so 
much in their favor, will not consent to an al­
teration; and we see that the delegates from 
Carolina in Congress have always been chosen 
by the delegates of that city. The representa­
tives, therefore, from that state will not he 
chosen by the people, but will be the representa­
tives of a faction of that state.

Later in the debate, two speakers emphasized that 
most American legislatures were apportioned on the 
basis of population. John Coffin Jones said (I I  
Elliot 75) :

[T]he people of the United States are an 
enlightened, well-informed people, and are, 
therefore, not easily imposed on by designing 
men. Our right of representation, concluded 
Mr. J., is much more just and equitable than 
the boasted are of Great Britain, whose rep­
resentatives are chosen by corporations or bor­
oughs * * *.

Similarly, James Bowdoin, a member of the Congress 
under the Confederation and former governor, re­
marked that (id. at 127) :

The equality of representation is determined in
nearly all the states by numbers; so it is in the 
federal Constitution.



95

In the Connecticut convention, Oliver Wolcott a 
delegate to the Continental Congress and later gover­
nor, defended the proposed constitution. In doing so, 
he said (I I  Elliot 202) :

The Senate, a constituent branch of the general 
legislature, without whose assent no public act 
can be made, are appointed by the states, and 
will secure the rights of the several states. The 
other branch of the legislature, the Represent­
atives, are to be elected by the people at large. 
They will therefore be the guardians of the 
rights of the great body of the citizens.

Similarly, during the New York convention, 
Melaneton Smith, a delegate to the Continental Con­
gress, said (I I  Elliot 311) :

[A ]s the senators are the representatives of the 
state legislatures, it is reasonable and proper 
that they should be under their control.

Alexander Hamilton described the conflict over rep­
resentation in Congress (id. at 236) :

On the other hand, the small states, seeing 
themselves embraced by the Confederation upon 
equal terms, wished to retain the advantages 
which they already possessed. The large states, 
on the contrary, thought it improper that Rhode 
Island and Delaware should enjoy an equal suf­
frage with themselves. From these sources a 
delicate and difficult contest arose. It became 
necessary, therefore, to compromise, or the 
Convention must have dissolved without effect­
ing any thing.

Robert Lansing likewise said (id. at 272) :
When the subject of the apportionment of rep­
resentatives came forward, the large states in­
sisted that the equality of suffrage should be

706—57S— 63— 7



96

abolished. This the small states opposed con­
tending that it would reduce them to a state of 
subordination. There was such a division that 
a dissolution of the Convention appeared un­
avoidable, unless some conciliatory measure 
was adopted.

Later in the convention, Lansing described the nature 
of the Senate {id. at 289) :

I  believe it was undoubtedly the intention of 
the framers of this Constitution to make the 
lower house the proper, peculiar representative 
of the interests of the people; the Senate, of the 
sovereignty of the states.

Patrick Henry, the great orator of the Revolution 
and former governor, was one of the leading oppo­
nents of the Constitution at the Virginia convention. 
One of his principal objections to the Constitution in 
volved representation in Congress (ITT Elliot 46-47) :

[The Constitution] says that there shall not be 
more representatives than one for every thirty 
thousand. Row, sir, how easy is it to evade this 
privilege! “ The number shall not exceed one 
for every thirty thousand.” This may be satis­
fied by one representative from each state. Let 
our numbers be ever so great, this immense con­
tinent may, by this artful expression, be re­
duced to have but thirteen representatives * * *. 
When population increases, and a state shall 
send representatives in this proportion, Con­
gress may remand them, because the right of 
having one for every thirty thousand is not 
clearly expressed. * * * [W ]e may fairly con­
clude that they may restrain the number to one 
from each state. Perhaps the same horrors 
may hang over my mind again.



97

Later in the debate, he similarly contended (id. at 
324):

The honorable gentleman was pleased to say 
that the representation of the people was the 
vital principle of this government, I will 
readily agree that it ought to be so. But I 
contend that this principle is only nominally, 
and not substantially, to be found there. We 
contended with the’ British about representa­
tion. They offered us such a representation 
as Congress now does. They called it a virtual 
representation. I f  you look at that paper, you 
will find it so there. Is there but a virtual rep­
resentation in the upper house ? The states are 
represented, as states, by two senators each. 
Tins is virtual, not actual. They encounter you 
with Rhode Island and Delaware. This is not 
an actual representation. What does the term 
representation signify? It means that a cer­
tain district—a certain association of men— 
should be represented in the government, for 
certain ends. These ends ought not to be im­
peded or obstructed in any manner. Here, sir, 
this populous state has not an adequate share 
of legislative influence. The two petty states 
of Rhode Island and Delaware, which, together 
are infinitely inferior to this state in extent 
and population, have double her weight, and 
can counteract her interest. I  say that the rep­
resentation in the Senate, as applicable to 
states, is not actual. Representation is not, 
therefore, the vital principle of this govern­
ment. So far it is wrong.

Another opponent of the Constitution, William 
Grayson, a former member of the Continental Con­
gress and later to be a United States Senator, simi­
larly argued (I II  Elliot 280):

A  democratic branch marked with the strong 
features of aristocracy, and an aristocratic



98

branch with all the impurities and imperfec­
tions of the British House of Commons, arising 
from the inequality of representation and want 
of responsibility. There will be plenty of Old 
Sarums [a rotten borough], if the new Consti­
tution should be adopted. Do we love the Brit­
ish so well as to imitate their imperfections? 
We could not effect it more than in that par­
ticular instance. Are not all defects and cor­
ruptions founded on an inequality of represen­
tation and want of responsibility ?

A few moments later, Grayson said (id. at 281) :
But the British House of Commons are cor­
rupted from the same cause that our repre­
sentatives will be : I mean from the Old Sarums 
among them—from the inequality of the rep­
resentation.

Grayson objected to the power of the Senate to pro­
pose amendments to “money bills.” He said that in 
the lower house (id. at 376) :

* * * the people are represented according to 
their numbers. In the upper house, the states 
are represented in their political capacities. 
Delaware or Rhode-island has as many repre­
sentatives here as Massachusetts. Why should 
the senate have a right to intermeddle with 
money, when the representation is neither equal 
or just?

In defending the need for Congressional control 
over federal elections provided in Article I, Section 
4, James Madison said (I I I  Elliot 367) :

Elections are regulated now unequally in some 
states, particularly South Carolina, with re­
spect to Charleston, which is represented by 
thirty members.

William Richardson Davie, a delegate to the na­
tional convention, described its proceedings to the



99

North Carolina ratifying convention. As to Congress, 
he stated (IV  Elliot 21) :

The House of Representatives are immediately 
elected by the people. The senators represent 
the sovereignty of the states; they are directly 
chosen by the state legislatures, and no legisla­
tive act can be done without their concurrence.

Concerning the nature of the new federal system, 
Davie said (id. at 22-23) :

Every member saw that the existing system 
would ever be ineffectual, unless its laws op­
erated on individuals, as military coercion was 
neither eligible nor practicable. Their own 
experience was fortified by their knowledge of 
the inherent weakness of all confederate gov­
ernments. They knew that all governments 
merely federal had been short-lived, or had 
existed from principles extraneous from their 
constitutions, or from external causes which had 
no dependence on the nature of their govern­
ments. These considerations determined the 
Convention to depart from that solecism in 
politics—-the principle of legislation for states 
in their political capacities.

The great extent of country appeared to some 
a formidable difficulty; but a confederate gov­
ernment appears, at least in theory, capable of 
embracing the various interests of the most ex­
tensive territory. Founded on the state gov­
ernments solely, as I have said before, it would 
be tottering and inefficient. It became, there­
fore, necessary to bottom it on the people them­
selves, by giving them an immediate interest 
and agency in the government. * * *

The business of the Convention was to amend 
the Confederation by giving it additional pow­
ers. The present form of Congress being a 
single body, it was thought unsafe to augment 
its powers, without altering its organization.



1 0 0

James Iredell, one of the initial members of this 
Court, was one of the leading supporters of the pro­
posed constitution at the North Carolina convention. 
In doing so, he defended the balance of the new fed­
eral system (IV  Elliot 38-39):

Thus, then, the general government is to be 
taken care of, and the state governments to be 
preserved. The former is done by a numerous 
representation of the people of each state, in 
proportion of its importance. The latter is ef­
fected by giving each state an equal representa­
tion in the Senate. The people will be repre­
sented in one house, the state legislatures in 
the other * * *. The House of Representatives 

* * will represent the immediate interests of 
the people. * * * The respectability of their 
constituents, who are the free citizens of Amer­
ica, will add great weight to the representa­
tives * * *.

Subsequently, he similarly remarked (id. at 133) :
It is true that it would be very improper if  the 
Senate had authority to prevent the House of 
Representatives from protecting the people. It 
would be equally so if  the House of Repre­
sentatives were able to prevent the Senate from 
protecting the sovereignty of the states.

Richard Dobbs Spaight, a delegate at the federal
convention, explained the reason that the Senate was 
required to concur in treaties (IV  Elliot 27) :

[i]t was thought better to put that power into 
the hands of the senators as representatives of 
the states—-that thereby the interest of every 
state was equally attended to in the formation 
of treaties—but that it was not considered as a 
legislative act at all.



101

Davie likewise defended this requirement, saying that 
it was (id. at 120) :

* * * indispensable to give to the senators, as 
representatives of states, the power of making, 
or rather ratifying, treaties. Although it mili­
tates against every idea of just proportion that 
the little state of Rhode Island should have the 
same suffrage with Virginia, or the great com­
monwealth of Massachusetts, yet the small 
states would not consent to confederate without 
an equal voice in the formation of treaties.

In defending Article I, Section 4, which gives Con­
gress power to regulate federal elections, Davie re­
marked that (IV  Elliot 58) :

* * * a consolidation of the states is said by 
some gentlemen to have been intended. They 
insinuate that this was the cause of their giving 
this power of elections. I f  there were any seeds 
in this Constitution which might, one day, pro­
duce a consolidation, it would, sir, with me, be 
an insuperable objection, I  am so perfectly con­
vinced that so extensive a country as this can 
never be managed by one consolidated govern­
ment. The Federal Convention were as well 
convinced as the members of this house, that 
the state governments were absolutely neces­
sary to the existence of the federal government. 
They considered them as the great massy pillars 
on which this political fabric was to be ex­
tended and supported; and were fully per­
suaded that, when they were removed, or should 
moulder down by time, the general government 
must tumble into ruin. A very little reflection 
will show that no department of it can exist 
without the state governments.

John Steele, later a Congressman, also defended 
Article I, Section 4 against the charge that it would







104

sentiment of the citizens of America, is ex­
pressed in the motto which some of them have 
chosen, UNITE OR D IE ; and while we con­
sider the extent of the country, so intersected 
and almost surrounded with navigable rivers, 
so separated and detached from the rest of the 
world, it is natural to presume that Providence 
has designed us for an united people, under 
one great political compact. I f  this is a .just 
and reasonable conclusion, supported by the 
wishes of the people, the Convention did right 
in proposing a single confederated Republic.

In the ratifying convention itself, Wilson, one of 
the leading exponents of apportionment based on 
population in both houses, said (I I I  Parrand 144) :

The truth is, Sir, that the framers of this 
system were particularly anxious, and their 
work demonstrates their anxiety, to preserve 
the state governments unimpaired—it was their 
favorite object; and, perhaps, however proper 
it might be in itself, it is more difficult to de­
fend the plan on account of the excessive cau­
tion used in that respect than from any other 
objection that has been offered here or else­
where. * * * I  trust it is unnecessary to dwell 
longer upon this subject; for, when gentlemen 
assert that it was the intention of the federal 
convention to destroy the sovereignty of the 
states, they must conceive themselves better 
qualified to judge of the intentions of that 
body than its own members, of whom not one, 
I  believe, entertained so improper an idea.

Later, Wilson similarly stated {id. at 162) :
I  say, Sir, that it was the design of this 

system, to take some power from the State 
government, and to place it in the general 
government. It was also the design, that the 
people should be admitted to the exercise of 
some powers which they did not exercise under



105

the present confederation. Tt was thought 
proper that the citizens, as well as the States, 
should be represented * * *.

e. Materials on the Constitution Originating after 
the Start of the New Government.—In 1796, Presi­
dent Washington’s Message to the House of Repre­
sentatives explained why it was not necessary under 
the Constitution to submit Jay’s treaty with Great 
Britain to the House (I II  Par rand 371) :

It is a fact, declared by the General Conven­
tion, and universally understood, that the Con­
stitution of the United States was the result of 
a spirit of amity and mutual concession. And 
it is well known that, under this influence, the 
smaller States were admitted to an equal repre­
sentation in the Senate, with the larger States; 
and that this branch of the Government was in­
vested with great powers; for, on the equal par­
ticipation of those powers, the sovereignty and 
political safety of the smaller States were 
deemed essentially to depend.

Jonathan Dayton, a delegate from Hew Jersey at 
the constitutional convention, described the compro­
mise between the large and small States in the Sen­
ate in 1803 (I I I  Farrand 400-403) :

Mr. Dayton believed it would come to this, 
that when the question came to be discussed, 
and the rights of the small States maintained, 
the large States would, threaten us with their 
power. The same threats had been heard in 
the old Congress, but they were laughed at, for 
the votes of the States were equal; they were 
heard in the Convention, but they were spurned 
at, for the votes were equal there also; the 
large States must be cautious here, for in this 
body, too, the votes are equal. * * * The States, 
whatever was their relative magnitude, were 
equal under the old Confederation, and the



106

small States gave up a part of their lights as a 
compromise for a better form of government 
and security; but they cautiously preserved 
their equal rights in the Senate and in the 
choice of a Chief Magistrate.

*  *  *  *  *

* * * But a few years ago we were equal 
in votes and influence, though inferior in size 
and population, to the largest States. We con­
sented to give up a certain portion of that in­
fluence for the general good, expressly retain­
ing the other portion for our own protection 
and security. This instrument, the Constitu­
tion, which we have sworn to support, and are 
now about to deface, is the new compact which 
that temper produced. It is the great plan of 
compromise between the jarring and contend­
ing interests of the great and small States.

In a letter written in 1803, Gouverneur Morris also 
described the compromise (I I I  Farrand 404-405) :

That if, in the new legislature, as in the old 
Congress, each had been equally represented, 
and each preserved an equal vote, the sacrifice 
or rights would have been equal. But when it 
was admitted, that, in the National Legislature, 
the Representatives should be appointed accord­
ing to the number of citizens, the sacrifice of 
rights was great, in proportion as the States 
were small. Thus Delaware, which had but one 
Representative out of sixty-five, retained only 
one sixty-fifth part of the nation’s authority; 
and Virginia, which had ten Representatives, 
obtained two thirteenths. Wherefore, since 
each had previously enjoyed one thirteenth, 
Delaware lost four fifths o f its power, and that 
of Virginia was doubled, so that Delaware, com­
pared to Virginia, was reduced under the new 
establishment from equality to one tenth. It



1 0 7

was moreover evident, that the course of popu­
lation would daily increase this decided superi­
ority of the great States. That, of course, if 
the whole power of the union had been expressly 
vested in the House of Representatives, the 
smaller States would never have adopted the 
Constitution. But in the Senate they retained 
an equal representation, and to the Senate was 
given a considerable share of those powers exer­
cised by the old Congress.

In 1818 Charles Pinckney, a delegate to the federal 
convention, wrote to John Quincy Adams concerning 
the proceedings of the convention. He said (I I I  
Farrand 427) :

My Plan was substantially adopted in the 
sequel except as to the Senate & giving more 
power to the Executive than I  intended—the 
force of Vote which the small & middling states 
had in the Convention prevented our obtaining 
a proportional representation in more than one 
branch * * *.

A little over a year later, Pinckney stated in the Sen­
ate (id. at 441-442) :

On a motion from Virginia the Convention met 
at Philadelphia, where, as you will find from 
the Journals, we were repeatedly in danger of 
dissolving without doing any thing; that body 
being equally divided as to large and small 
States, and each having a vote, and the small 
States insisting most pertinaciously, for near 
six weeks, on equal power in both branches— 
nothing but the prudence and forbearance of 
the large States saved the Union. A  compro­
mise was made, that the small States and large 
should be equally represented in the Senate, 
and proportionally in the House of Representa­
tives. * * *

* * * [The small States] did, by force, or 
something like it, deprive us of a rightful part 
of our representation * * *.



108

In 1824, Rufus King wrote a letter explaining the 
Constitution’s provisions concerning the election of 
President (I I I  Farrand 462-463) :

The election of the Pr., as it is one of the most 
important, so it is one of the most intricate pro­
visions of the Constitution, and in its object, 
except in the first stage of the process, is 
assigned to the States acting in their federal 
equal capacity. For this reason, measures 
which may be employed in the several States, 
under regulations and provisions of simple, and 
single sovereignties, could not be adopted in the 
balanced system of the Constitution of the 
U.S.—a compact between the States, wh. con­
tains special provisions whereby the executive, 
legislative and judicial officers must be ap­
pointed.

In discussing the same subject, James Madison simi­
larly wrote in 1825 {id. at 464) :

In our complex system of polity, the public 
will, as a source of authority, may be the will 
of the people as composing one nation; or 
the will of the States in their distinct and 
independent capacities; or the federal will, as 
viewed, for example, through the Presidential 
electors, representing, in a certain proportion, 
both the nation and the States.

In 1825 William Steele wrote a letter describing the 
account of the conflict over representation in the con­
vention which he had received from Jonathan Dayton,
who had been a delegate (I I I  Farrand

When the details of the House of Represent­
atives were disposed of, a more knotty point 
presented itself in the organization of the Sen­
ate. The larger states contended that the same 
ratio, as to states, should be common to both



109

branches of the legislature; or, in other words, 
that each state should be entitled to a represen­
tation in the Senate, (whatever might be the 
number fixed on,) in proportion to its popula­
tion, as in the House of Representatives. The 
smaller states, on the other hand, contended 
that the House of Representatives _ might be 
considered as the guardian of the liberties of 
the people, and therefore ought to bear a just 
proportion to their numbers; but that the Sen­
ate represented the sovereignty of the States, 
and that as each state, whether great or small, 
was equally an independent and sovereign state, 
it ought, in this branch of the legislature, to 
have equal weight and authority; without this, 
they said, there could be no security for their 
equal rights—and they would, by such a distri­
bution of power, be merged and lost in the 
larger states.

* * * * *
When the Convention had adjourned over to 

the next day, the delegates of the four smallest 
states, i.e., Rhode Island, Connecticut, New 
Jersey, and Delaware, convened to consult what 
course was to be pursued in the important 
crisis at which we had arrived. After serious 
investigation, it was solemnly determined to 
ask for a reconsideration the next morning; 
and if it was not granted, or if, when granted, 
that offensive feature of the Constitution could 
not be expunged, and the smaller states put 
upon an equal footing with the largest, we 
would secede from the Convention, and, return­
ing to our constituents, inform them that no 
compact could be formed with the large states, 
but one which would sacrifice our sovereignty 
and independence.

In 1826, Madison wrote Andrew Stevenson concern­
ing the confusion between national and federal gov-



1 1 0

eminent as applied to proposals before the constitu­
tional convention (I I I  Farrand 473-474) :

W ill you pardon me for pointing out an er­
ror of fact into which you have fallen, as others 
have done, by supposing that the term, national 
applied to the contemplated Government, in the 
early stage of the Convention, particularly in 
the propositions of Mr. Randolph, was equiva­
lent to unlimited or consolidated. This was 
not the case. The term was used, not in con­
tradistinction to a limited, but to a federal Gov­
ernment. As the latter operated within the ex­
tent of its authority thro’ requisitions on the 
confederated States, and rested on the sanction 
of State Legislatures, the Government to take 
its place, was to operate within the extent of 
its powers directly & coercively on individuals, 
and to receive the higher sanction of the people 
of the States. And there being no technical or 
appropriate denomination applicable to the 
new and unique System, the term national was 
used, with a confidence that it would not be 
taken in a wrong sense, especially as a right one 
could be readily suggested if not sufficiently 
implied by some of the propositions themselves. 
Certain it is that not more than two or three 
members of the Body and they rather theoreti­
cally than practically, were in favor of an un­
limited Govt, founded on a consolidation of the 
States; and that neither Mr. Randolph, nor any 
one of his colleagues was of the number.

Madison similarly wrote N. P. Trist in 1831 (id. at 
517-518):

On recurring to the writings of Col. Taylor, 
it will be seen that he founds his imputation 
agst. myself and Govr. Randolph, of favoring 
a Consolidated Rational Governt on the Resolu­
tions introduced into the Convention by the 
latter, in behalf of the Yirga. Delegates, from



I l l

a consultation among whom they were the re­
sult. The Resolutions imported that a Govt, 
consisting of a National Legislre. Executive 
& Judiciary, ought to be substituted for the 
Existing Gongs. Assuming for the term_ Na­
tional a meaning coextensive with a Single 
Consolidated Govt, he filled a number of pages, 
in deriving from that source, a support of his 
imputation. The whole course of proceedings 
on those Resolutions ought to have satisfied 
him that the term National as contradistin­
guished from Federal, was not meant to ex­
press more than that the powers to be vested 
in the new Govt, were to operate as in a Natl. 
Govt, directly on the people, & not as in the 
Old Confedcy. on the States only * * *.

It ought to have occurred that the Govt, of 
the U.S. being a novelty & a compound, had 
no technical terms or phrases appropriate to it ; 
and that old terms were to be used in new 
senses, explained by the context or by the facts 
of the case.

Some exulting inferences have been drawn 
from the change noted in the Journal of the 
Convention, of the word National into ‘ United 
States.”  The change may be accounted for by 
a desire to avoid a misconception of the former, 
the latter being preferred as a familiar cap­
tion. That the change could have no effect 
on the real character of the Govt, was & is 
obvious; this being necessarily deduced from 
the actual structure of the Govt, and the quan­
tum of its powers.

In 1833, Madison again denied that he had desired 
at the constitutional convention to form a consoli­
dated government in which the States were the equiv­
alent of provinces (I I I  Farrand 529-530) :

The Charge must rest on the term “ Na­
tional”  prefixed to the organized Depts. in the



1 1 2

propositions of Mr. R. yet how easy is it to 
acct. for the use of the term with! taking it in 
a consolidating sense %

In the 1st. place. It contradistinguished the 
proposed Govt from the Confederacy which it 
was to supersede.

2. As the System was to be a new & com­
pound one a nondescript without a technical 
appellation for it, the term “ National”  was 
very naturally suggested by its national fea­
tures. 1. in being estabd. not by the authority 
of State Legs but by the original authy. of 
the people 2. in its organization into Legisl. 
Ex. & Judy. Departs.: and 3. in its action on 
the people of the States immediately, and not 
on the Govts, of the States, as in a Confederacy.

But what alone would justify & acct. for the 
application of the term National to the pro­
posed Govt, is that it wd. possess, exclusively 
all the attributes of a natl. Govt, in its relations 
with other nations including the most essential 
one, of regulating foreign Commerce; with an 
effective means of fulfilling the obligs. & re- 
sponsiby of the U.S. to other nations. Hence 
it was that the term natl. was at once so 
readily applied to the new Govt, and that it 
has become so universal & familiar.

In March 1836, Madison described the conflict over 
apportionment at the convention (I I I  Earrand 538) :

It is well known that the equality of the 
States in the Federal Senate was a compromise 
between the larger and the smaller States, the 
former claiming a proportional representation 
in both branches of the Legislature, as due to 
their superior population; the latter an equality 
in both, as a safeguard to the reserved sover­
eignty of the States, an object which obtained 
the concurrence of members from the larger 
States. But it is equally true, though but little 
reverted to as an instance of miscalculating



speculation, that, as soon as the smaller States 
had secured more than a proportional share in 
the proposed Government, they became favour­
able to augmentations of its powers, and that, 
under the administration of the Government, 
they have generally, in contests between it and 
the State governments, leaned to the former.

Subsequently, Madison wrote a description of the 
constitutional convention in a preface to his notes on 
the convention (I I I  'Parrand 539) :

As the weakness and wants of man naturally 
lead to an association of individuals, under a 
common authority, whereby each may have the 
protection of the whole against danger from 
without, and enjoy in safety within, the advan­
tages of social intercourse, and an exchange of 
the necessaries & comforts of life : in like man­
ner feeble communities, independent of each 
other, have resorted to a Union, less intimate, 
but with common Councils, for the common 
safety agst. powerful neighbors, and for the 
preservation of justice and peace among them­
selves. Ancient history furnishes examples of 
these confederacies, tho’ with a very imperfect 
account, of their structure, and of the attributes 
and functions of the presiding Authority. 
There are examples of modern date also, some 
of them still existing, the modifications and 
transactions of which are sufficiently known.

It remained for the British Colonies, now 
United States, of North America, to add to 
those examples, one of a more interesting char­
acter than any of them: which led to a system 
without a precedent ancient or modern, a sys­
tem founded on popular rights, and so combing, 
a federal form with the forms of individual 
Republics, as may enable each to supply the 
defects of the other and obtain the advantages 
of both—



114

2. T he V iews of T homas Jefferson and J ames

M adison on A pportioning State L egislatures

a. Thomas Jefferson.-—In June 1776, Jefferson 
wrote a Proposed Constitution for Virginia. It pro­
vided as to apportionment of the legislature (I I  
Writings of Thomas Jefferson (Ford ed., 1893), p. 
1 5 ):

The number of representatives for each 
county or borough shall be so proportioned to 
the number of it’s qualified electors that the 
whole number of representatives shall not ex­
ceed [300] nor be less than [150.] for the pres­
ent there shall be one representative for every 
[400] qualified electors in each county or 
borough * * *.

The Senate was to be elected by the House of Dele­
gates apparently from the State at large without 
regard to residence.

Jefferson’s Votes on Virginia, which was written 
in 1781, discussed the then existing constitution of 
the State (I I I  id. at 222) :

This constitution was formed when we were 
new and unexperienced in the science of gov­
ernment. It was the first, too, which was 
formed in the whole United States. Vo wonder 
then that time and trial have discovered capital 
defects in it.

Included in the defects which Jefferson found was 
(I I I  id. at 222-223) :

2. Among those who share the representation, 
the shares are very unequal. Thus the county 
of Warwick, with only one hundred fighting 
men, has an equal representation with the 
county of Loudon, which has 1746. So that 
every man in Warwick has as much influence 
in the government as 17 men in Loudon. * * *



115

* * * It will appear at once that nineteen 
thousand men, living below the falls of the 
rivers, possess half o f the senate, and want four 
members only of possessing a majority of the 
house of delegates * * *. These nineteen thou­
sand, therefore, living in one part of the coun­
try, give law to upwards of thirty thousand 
living in another * * *.

In June 1783, Jefferson wrote another proposed 
constitution for Virginia. It provided as to the legis­
lature that (I I I  id. at 322-323) :

The number of delegates which each county 
may send shall be in proportion to the number 
of its qualified electors * * *.

* * * I f  any county be reduced in its qualified 
electors below the number authorized to send 
one delegate, let it be annexed to some adjoin­
ing county.

Since the Senate was to have one senator for every 
6 delegates in districts to be formed, it was likewise 
apportioned according to population.

A  letter to Archibald Stuart, a life-long friend of 
Jefferson’s and a member of the Virginia legislature, 
which was written on December 23, 1791, again stated 
Jefferson’s ideas on changing the Virginia Constitu­
tion. He started his list of proposals (V  id. at 410) : 

I  consider the following changes as important. 
Render the legislature a desirable station by 
lessening the number of representatives (say 
to 100) and lengthening somewhat their term, 
and proportion them equally among the elec­
tors * * *.

Later, in approximately 1794, Jefferson wrote Rotes 
for a Constitution. He stated that (V I id. at 520) :

The legislature shall provide that returns be 
made to themselves periodically of the qualified 
voters in every county, by their name and quali­



116

fication and from the whole number of qualified 
voters in the commonwealth such an Unit of 
representation shall from time to time be taken 
as will keep the number of representatives 
within the limits of 150 and 300 allowing to 
every county a representative for every Unit 
& fraction of more than half a Unit it contains.

Jefferson wrote in the margin that “ [ i ] f  a county 
has not an half Unit, add its votes to another.” Ibid.

In 1816, a constitutional convention for Virginia 
was being considered. In a letter to Samuel 
Kereheval on July 12, Jefferson discussed his ideas 
on the subject in detail, although he made clear that 
they were not for publication. A  considerable pro­
portion of the letter was devoted to representation 
in the legislature (X  id. at 37-41) :

At the birth of our republic * * * the abuses 
of monarchy had so much filled all the space 
of political contemplation, that we imagined 
everything republican which was not monarchy. 
We had not penetrated to the mother prin­
ciple, that “ governments are republican only in 
proportion as they embody the will of their 
people, and execute it.” Hence, our first con­
stitutions had really no leading principles in 
them. But experience and reflection have but 
more and more confirmed me in the particular 
importance of the equal representation then 
proposed.

* * * * *
But inequality of representation in both 

Houses of our legislature, is not the only re­
publican heresy in this first essay of our revol­
utionary patriots at forming a constitution. 
For let it be agreed that a government is re­
publican in proportion as every member com­
posing it has his equal voice in the direction



117

of its concerns (not indeed in person, which 
would be impracticable beyond the limits of a 
city, or small township, but) by representa­
tives chosen by himself, and responsible to him 
at short periods, and let us bring to the test 
of this canon every branch of our constitution.

In the legislature, the House of Representa­
tives is chosen by less than half the people, and 
not at all in proportion to those who do choose. 
The Senate are still more disproportionate. 

* * * * *
The true foundation of republican govern­
ment is the equal right of every citizen, in his 
person and property, and in their management. 

* * * * *
The sum of these amendments is, 1. General 

Sufferage. 2. Equal representation in the legis­
lature.

On November 19, 1819, Jefferson wrote William 
King (Jefferson Papers, Library of Congress, vol. 216, 
p. 38616) :

Equal representation is so fundamental a prin­
ciple in a true republic that no prejudice can 
justify its violation because the prejudices 
themselves cannot be justified.

b. James Madison—On August 23, 1785, Madison 
wrote John Brown, a friend and later a leader in Ken­
tucky’s quest for statehood and a Congressman and 
Senator, concerning legislative apportionment (I  Let­
ters and Other Writings of James Madison (1865),
pp. 181-182) :

[Proportioning of the representatives * * * 
may easily be done, in the first instance, either 
by comprising within each County an equal 
number of Electors, or by proportioning the 
number of representatives of each County to its 
number of Electors. The difficulty arises from



118

the disproportionate increase of electors in dif­
ferent Counties. There seem to be two meth­
ods only by which the representation can be 
equalized from time to time. The first is to 
change the bounds of the Counties; the second, 
to change the number of representatives allot­
ted to them, respectively. As the former would 
not only be most troublesome and expensive, 
but would involve a variety of other adjust­
ments, the latter method is evidently the best. 
Examples of a Constitutional provision for it 
exists in several of the States. In some it is to 
be executed periodically; in others, pro re nata. 
The latter seems most accurate and very prac­
ticable.

U.S. GOVERNMENT PRINTING 0FFICE.-1963



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