On June 27-28, 1787, for over three hours, Luther Martin, Maryland’s Attorney General and delegate, objected vehemently on the floor of the Constitutional Convention. Transcripts of Mr. Martin’s remarks were recorded into history by Robert Yates (NY) and James Madison (VA). Madison was author of the Virginia plan, which Mr. Martin vigorously debated at regular intervals throughout the Convention.
Upon his arrival at the Philadelphia Convention, Luther Martin pondered possible remedies, as was his charge, to amend the Articles of Confederation, ratified and adopted March 1, 1781. An air of mystery presided over the statehouse, as the founders and framers conducted the work of the Grand Convention.
Mr. Martin reflected on his arrival to the Convention, on June 9, 1787, in a speech given to the Maryland Delegation on November 29 of that same year.
When I joined the Convention I found that Mr. Randolph, of Virginia, had laid before the Body certain propositions (the Virginia Plan) for their consideration, and that the Convention had entered into many Resolutions, respecting the manner of conducting Business, one of which was that seven states might proceed to Business, and therefore four states composing a Majority of seven, might eventually give the Law to the whole Union.
Different instructions were given to Members of different states – The delegates from Delaware were instructed not to infringe on their Local Constitution – others were prohibited their assent to any duty in Commerce: the Convention enjoined all to secrecy; so that we had no opportunity of gaining information by a Correspondence with others; and what was still more inconvenient, extracts from their own Journals were prohibited even for our own information.
One of the critical issues debated after the introduction of the Virginia Plan was the distinction between the differing types of general governments, particularly a federation and a national government. A federation exists by a compact, or contract, resting upon the good faith of the states, contrasted with a national government exercising complete control over the operation of the states. The nationalist position of the Virginia Plan was repulsive to many delegates, including Mr. Martin, who opposed the prospect of a central government. He argued it would consume the sovereignty of the states.
Beginning his remarks on the floor of the Constitutional Convention, Mr. Martin addressed the function of a general government.
This question is important, and I have already expressed my sentiments on the subject. My opinion is, that the general government ought to protect and secure the state governments; others however, are of a different sentiment, and reverse the principle. The present reported system (under the Articles of Confederation) is a perfect medley of confederated and national government, without example and without precedent. Many who wish the general government to protect the state governments, are anxious to have the line of jurisdiction well drawn and defined, so that they may not clash. This suggests the necessity of having this line well detailed; possibly this may be done. If we do this, the people will conceive that we meant well to the state governments; and should there be any defects, they will trust a future convention with the power of making further amendments.
A general government may operate on individual cases of general concern, and still be federal. This distinction is with the states, as states, represented by the people of those states. States will take care of their internal police and local concerns. The general government has no interest, but the protection of the whole. Every other government must fail. We are proceeding on forming this [new] government as if there were no state governments at all. The states must approve, or you will have none at all. I have never heard of a confederacy having two legislative branches. Even the celebrated Mr. Adams who talks about checks and balances, does not suppose it necessary in a confederacy. Public and domestic debts are our great distress. The treaty between Virginia and Maryland about the navigation of the Chesapeake and Potomac, is no infraction of the confederacy.
The cornerstone of a federal government is equality of votes. States may surrender this right, but if they do, their liberties are lost. If I err on this point, it is an error of the head, not of the heart. It must be remembered that in forming the Confederacy the State of Virginia proposed and obstinately contended (tho unsupported by any other) for representation according to Numbers, and the second resolve now brought forward by an Honorable Member from that State was formed in the same spirit characterized it’s representatives in their endeavors to increase its powers and influence in the Federal Government.
The first principle of government is founded on the natural right of the individuals, and in perfect equality. This principle of equality, when applied to individuals, is lost in some degree, when he becomes a member of a society, by the name of state or kingdom, is , with respect to others again on a perfect footing of equality: a right to govern themselves as they please. Nor can any other state, of right, deprive them of this equality. If such a state confederates, it is intended for the good of the whole; and if it again confederates, those rights must be well guarded. Nor can any state demand surrender of any of those rights; if it can, equality is already destroyed. We must treat as free states with each other upon the same terms of equality that men originally formed themselves into societies. Vattel, Rutherford, and Locke are united in support of this position, that states, as to each other, are in a state of nature.
I have traveled with the most respectable authorities in support of principles, all tending to prove the equality of independent states. This equality applicable to the smallest as well as the largest states on the true principles of reciprocity and political freedom.
Unequal confederacies can never produce good effects. Apply this to the Virginia plan, out of the number 90, Virginia has 16 votes, Massachusetts 14, Pennsylvania 12, – in all 42, add to this a state with 4 votes, and it gives a majority in the general legislature. Consequentially, a combination of these states will govern the remaining nine or ten states. Where is the safety and independency of those states? Pursue the subject further, The executive is supposed to be appointed by the legislature, and becomes the executive in consequence of this undue influence. And hence flows the appointments of all your officers, civil, military, and judicial. The executive is supposed to have a negative (veto) on all laws. Suppose the possibility of a combination of ten states; he negatives a law; it is totally lost, because those states cannot form two-thirds of the legislature. I am willing to give up private interest for the public good, but I must be satisfied with first that it is the public interest. Who can decide this point? A majority only of the union.
The Lacedaemonians insisted in the Amphictyonic council to exclude some of the smaller states from a right to vote in order that they might tyrannize over them. If the plan now on the table be adopted, three states in the union have the control, and they may make use of their power when they please.
If there exists no separate interests, there is no danger of an equality of votes; and if there be danger, the smaller states cannot yield. If 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 foundation is good. Read then the votes and proceedings of Congress on forming the confederation: Virginia only was opposed to the principles of equality; the smaller states yielded rights, not the large states; they gave up their claims to the unappropriated lands with the tenderness of the mother recorded by Solomon; they sacrificed affection to the preservation of others. New Jersey and Maryland rendered more essential services during the war than many of the larger states. The partial representation in Congress is not the cause of its weakness, but the want of power. I would not trust a government organized upon the reported plan for all of the slaves in Carolina or the horses and oxen of Massachusetts. 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. What are called human feelings in this instance are only the feelings of ambition and the lust for power.
On federal grounds, it is said, that a minority will govern a majority; but on the Virginia plan a minority would tax a majority. In a federal government, a majority of states must and ought to tax. In the local government 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 government. These are already secured by their guardians, the state governments. The general government is therefore intended only to protect and guard the rights of the states as states.
This general government, I believe, is the first upon the earth that gives checks against democracies and aristocracies. The only necessary check in a general government ought to be a restraint to prevent it absorbing the powers of the state governments. Representation on federal principles can only flow from state societies. Representation and taxation are ever inseparable, not according to the quantum of property, but the quantum of freedom.
Will the representative of a state forget state interests? The mode of election cannot change it. These prejudices cannot be eradicated. Your general government cannot be just or equal upon the Virginia plan, unless you abolish state interests. If this cannot be done, you must go back to principles purely federal.
On this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. Under these ideas can it be expected that the people can approve the Virginia Plan? But it is said, that people, not the state legislatures, will be called upon for approbation, with an evident design to separate the interest of the governors from the governed. What must be the consequence? Anarchy and confusion. We lose the idea of the powers with which we are entrusted. The legislatures must approve. By them it must, on your own plan, be laid before the people. How will such government, over so many great states, operate? Whenever new settlements have been formed in large states, they immediately want to shake off their independency. Why? Because the government is too remote for their good. The people want it nearer home.
The basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. The states forming the Amphictyonic council were equal, though Lacedaemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. The plan reported, it is true, only intends to diminish those rights, not go annihilate them. It was the ambition and the power of the great Grecian states which at last ruined this respectable council. The states as societies are ever respectful. Has Holland or Switzerland ever complained of the equality of states which compose their respective confederacies? Bern and Zurich are larger than the eleven remaining cantos (so are many of the states of Germany); and yet their governments are not complained of. Bern alone might usurp the power of the Helvetica confederacy, but she is contented still with being equal.
The admission of the larger states into the confederation, on the principle 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. It is their joint efforts which must protect and secure us from foreign danger, and give us peace and harmony at home.
At the beginning of our troubles with Great Britain, the smaller states were attempted to be cajoled to submit to the views of that nation, lest the larger states should usurp their rights. We then answered them, your present plan is slavery, which, on the remote prospect of a distant evil, we will not submit to.
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 of the contracting powers, and four states on this floor, have already declared their opposition to annihilate it. Is the old confederation dissolved because some of the states wish a new confederation?
Mr. Martin observed that the views of the larger states like Virginia, had obviously not gone unnoticed by the “lesser States,” and “private meetings were formed to counteract them. The subject however, was discussed with coolness in Convention, and hopes were formed that interest might in some points be brought to Yield to reason, or if not, that at all events, the lesser States were not precluded from introducing a different System, and particular Gentlemen were industriously employed in forming such a System (the New Jersey Plan) at those periods in which the Convention was not sitting.”
In response, New Jersey delegate William Paterson proposed a “union of the states purely federal.” The New Jersey Plan, “called for a revision of the Articles to enable Congress to more easily raise revenues and regulate commerce.” The plan also provided that Acts of Congress and ratified treaties made in pursuance of the compact be “the Supreme law of the States.” This clause, better know today as the “Supremacy Clause” has been credited to Attorney General Luther Martin.
Mr. Martin was a member of the Gerry Committee Compromise and the Committee of 11, preserving his historic role as a Founder and Framer of this new union, even though he did not sign or support the ratification of the new compact known as the Constitution of the United States of America, citing his fiduciary duty to the people and the state of Maryland.
Closing his address to the Maryland Delegation Martin declared:
I never suggested that the same powers could be safely entrusted to the old Congress, on the contrary, I opposed many of the powers as being of that nature that in my own opinion, they could not be entrusted to any government whatever consistent with the freedom of the states and their citizens, and I earnestly recommended, what I wish my fellow citizens deeply to impress on your minds, that in altering or amending our federal government, no greater powers ought to be given, than experience has shown to be necessary, since it will be easy to delegate further power when time shall dictate the expediency or necessity. But powers once bestowed upon a government, should they be found ever so dangerous or destructive to freedom, cannot be wrested from government but by another revolution.
Authors note: The historical remarks regarding Luther Martin’s objections during the Constitutional Convention have been note-ably regarded as “diffuse” and “desultory,” as these were the adjectives employed to describe his remarks by James Madison and Robert Yates’ written notes of the Convention‘s proceedings. In order to better understand Luther Martin’s remarks, I have taken his “Objections” from the 27th of June 1787, on the floor of the Convention, and combined them with excerpts from an address Mr. Martin made on November 29th 1787, to the Maryland State Delegation. This assists the understanding of his objections, and his dismay in the direction the Convention’s process had taken.