Note to the Speech of J. M. on the NA day of NA
These observations (in the speech of J. M. See debates in the Convention of 1787. on the NA day of NA ) do not convey the speaker's more full & matured view of the subject, which is subjoined. He felt too much at the time the example of Virginia The right of suffrage is a fundamental Article in Republican Constitutions. The regulation of it is, at the same time, a task of peculiar delicacy. Allow the right exclusively to property, and the rights of persons may be oppressed. The feudal polity alone sufficiently proves it. Extend it equally to all, and the rights of property or the claims of justice may be overruled by a majority without property, or interested in measures of injustice. Of this abundant proof is afforded by other popular Govts. and is not without examples in our own, particularly in the laws impairing the obligation of contracts.
In civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits: that industry from which property results, & that enjoyment which consists not merely in its immediate use, but in its posthumous destination to objects of choice and of kindred affection.
In a just & a free, Government, therefore, the rights both of property & of persons ought to be effectually guarded. Will the former be so in case of a universal & equal suffrage? Will the latter be so in case of a suffrage confined to the holders of property?
As the holders of property have at stake all the other rights common to those without property, they may be the more restrained from infringing, as well as the less tempted to infringe the rights of the latter. It is nevertheless certain, that there are various ways in which the rich may oppress the poor; in which property may oppress liberty; and that the world is filled with examples. It is necessary that the poor should have a defence against the danger.
On the other hand, the danger to the holders of property can not be disguised, if they be undefended against a majority without property. Bodies of men are not less swayed by interest than individuals, and are less controlled by the dread of reproach and the other motives felt by individuals. Hence the liability of the rights of property, and of the impartiality of laws affecting it, to be violated by Legislative majorities having an interest real or supposed in the injustice: Hence agrarian laws, and other leveling schemes: Hence the cancelling or evading of debts, and other violations of contracts. We must not shut our eyes to the nature of man, nor to the light of experience. Who would rely on a fair decision from three individuals if two had an interest in the case opposed to the rights of the third? Make the number as great as you please, the impartiality will not be increased, nor any further security against justice be obtained, than what may result from the greater difficulty of uniting the wills of a greater number.
In all Govts. there is a power which is capable of oppressive exercise. In Monarchies and Aristocracies oppression proceeds from a want of sympathy & responsibility in the Govt. towards the people. In popular Governments the danger lies in an undue sympathy among individuals composing a majority, and a want of responsibility in the majority to the minority. The characteristic excellence of the political System of the U. S. arises from a distribution and organization of its powers, which at the same time that they secure the dependence of the Govt. on the will of the nation, provides better guards than are found in any other popular Govt. against interested combinations of a Majority against the rights of a Minority.
The U. States have a precious advantage also in the actual distribution of property particularly the landed property; and in the universal hope of acquiring property. This latter peculiarity is among the happiest contrasts in their situation to that of the old world, where no anticipated change in this respect, can generally inspire a like sympathy with the rights of property. There may be at present, a Majority of the Nation, who are even freeholders, or the heirs, or aspirants to Freeholds. And the day may not be very near when such will cease to make up a Majority of the community. But they cannot always so continue. With every admissible subdivision of the Arable lands, a populousness not greater than that of England or France, will reduce the holders to a Minority. And whenever the Majority shall be without landed or other equivalent property and without the means or hope of acquiring it, what is to secure the rights of property agst. the danger from an equality & universality of suffrage, vesting compleat power over property in hands without a share in it: not to speak of a danger in the mean time from a dependence of an increasing number on the wealth of a few? In other Countries this dependence results in some from the relations between Landlords & Tenants in other both from that source, & from the relations between wealthy capitalists & indigent labourers. In the U. S. the occurrence must happen from the last source; from the connection between the great Capitalists in Manufactures & Commerce and the members employed by them. Nor will accumulations of Capital for a certain time be precluded by our laws of descent & of distribution; such being the enterprize inspired by free Institutions, that great wealth in the hands of individuals and associations, may not be unfrequent. But it may be observed, that the opportunities, may be diminished, and the permanency defeated by the equalizing tendency of the laws.
No free Country has ever been without parties, which are a natural offspring of Freedom. An obvious and permanent division of every people is into the owners of the Soil, and the other inhabitants. In a certain sense the Country may be said to belong to the former. If each landholder has an exclusive property in his share, the Body of Landholders have an exclusive property in the whole. As the Soil becomes subdivided, and actually cultivated by the owners, this view of the subject derives force from the principle of natural law, which vests in individuals an exclusive right to the portions of ground with which he has incorporated his labour & improvements. Whatever may be the rights of others derived from their birth in the Country, from their interest in the high ways & other parcels left open for common use as well, as in the national Edifices and monuments; from their share in the public defence, and from their concurrent support of the Govt., it would seem unreasonable to extend the right so far as to give them when become the majority, a power of Legislation over the landed property without the consent of the proprietors. Some barrier agst the invasion of their rights would not be out of place in a just & provident System of Govt. The principle of such an arrangement has prevailed in all Govts. where peculiar privileges or interests held by a part were to be secured agst. violation, and in the various associations where pecuniary or other property forms the stake. In the former case a defensive right has been allowed; and if the arrangement be wrong, it is not in the defense, but in the kind of privilege to be defended. In the latter case, the shares of suffrage allotted to individuals, have been with acknowledged justice apportioned more or less to their respective interests in the Common Stock.
These reflections suggest the expediency of such a modification of Govt. as would give security to the part of the Society having most at stake and being most exposed to danger. Three modifications present themselves.
1. Confining the right of suffrage to freeholders, & to such as hold an equivalent property, convertible of course into freeholds. The objection to this regulation is obvious. It violates the vital principle of free Govt. that those who are to be bound by laws, ought to have a voice in making them. And the violation wd. be more strikingly unjust as the lawmakers become the minority: The regulation would be as unpropitious also as it would be unjust. It would engage the numerical & physical force in a constant struggle agst. the public authority; unless kept down by a standing army fatal to all parties.
2. Confining the right of suffrage for one Branch to the holders of property, and for the other Branch to those without property. This arrangement which wd. give a mutual defence, where there might be mutual danger of encroachment, has an aspect of equality & fairness. But it wd. not be in fact either equal or fair, because the rights to be defended would be unequal, being on one side those of property as well as of persons, and on the other those of persons only. The temptation also to encroach tho' in a certain degree mutual, wd. be felt more strongly on one side than on the other; It wd. be more likely to beget an abuse of the Legislative Negative in extorting concessions at the expence of property, than the reverse. The division of the State into the two Classes, with distinct & independt. Organs of power, and without any intermingled Agency whatever, might lead to contests & antipathies not dissimilar to those between the Patricians & Plebeians at Rome.
3. Confining the right of electing one Branch of the Legislature to freeholders, and admitting all others to a common right with holders of property, in electing the other Branch. This wd. give a defensive power to holders of property, and to the class also without property when becoming a majority of electors, without depriving them in the mean time of a participation in the public Councils. If the holders of property would thus have a twofold share of representation, they wd. have at the same time a twofold stake in it, the rights of property as well as of persons the twofold object of political Institutions. And if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight shd. be allowed to the greater interest than to the lesser. Experience alone can decide how far the practice in this case would correspond with the Theory. Such a distribution of the right of suffrage was tried in N. York and has been abandoned whether from experienced evils, or party calculations, may possibly be a question. It is still on trial in N. Carolina, with what practical indications is not known. It is certain that the trial, to be satisfactory ought to be continued for no inconsiderable period; untill in fact the non freeholders should be the majority.
4 Should Experience or public opinion require an equal & universal suffrage for each branch of the Govt., such as prevails generally in the U. S., a resource favorable to the rights of landed & other property, when its possessors become the Minority, may be found in an enlargement of the Election Districts for one branch of the Legislature, and an extension of its period of service. Large districts are manifestly favorable to the election of persons of general respectability, and of probable attachment to the rights of property, over competitors depending on the personal solicitations practicable on a contracted theatre. And altho' an ambitious candidate, of personal distinction, might occasionally recommend himself to popular choice by espousing a popular though unjust object it might rarely happen to many districts at the same time. The tendency of a longer period of service would be, to render the Body more stable in its policy, and more capable of stemming popular currents taking a wrong direction, till reason & justice could regain their ascendancy.
5. Should even such a modification as the last be deemed inadmissible, and universal suffrage and very short periods of elections within contracted spheres be required for each branch of the Govt., the security for the holders of property when the minority, can only be derived from the ordinary influence possessed by property, & the superior information incident to its holders; from the popular sense of justice enlightened & enlarged by a diffusive education; and from the difficulty of combining & effectuating unjust purposes throughout an extensive country; a difficulty essentially distinguishing the U. S. and even most of the individual States, from the small communities where a mistaken interest or contagious passion, could readily unite a majority of the whole under a factious leader, in trampling on the rights of the Minor party.
Under every view of the subject, it seems indispensable that the Mass of Citizens should not be without a voice, in making the laws which they are to obey, & in chusing the Magistrates, who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the Govt. and a confinement of the entire right to a part of the Citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the Govt.; than, that those having the lesser interest, that of personal rights only, should be deprived of the whole.
[Footnotes as included or written by Farrand]
1 This note seems to have been written about 1821, when Madison was preparing his Debates for publication.