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expand2003 (1)
1Author:  Madison James 1751-1836Requires cookie*
 Title:  The Writings of James Madison  
 Published:  2003 
 Subjects:  University of Virginia Library, Modern English collection | UVA-LIB-Text 
 Description: Dear Sir The privilege of franking having ceased with the Convention, I have waited for this opportunity of inclosing you a copy of the proposed Constitution for the U. States. I forbear to make any observations on it; either on the side of its merits or its faults. The best Judges of both will be those who can combine with a knowledge of the collective & permanent interest of America, a freedom from the bias resulting from a participation in the work. If the plan proposed be worthy of adoption, the degree of unanimity attained in the Convention is a circumstance as fortunate, as the very respectable dissent on the part of Virginia is a subject of regret. The double object of blending a proper stability & energy in the Government with the essential characters of the republican Form, and of tracing a proper line of demarkation between the national and State authorities, was necessarily found to be as difficult as it was desirable, and to admit of an infinite diversity concerning the means among those who were unanimously agreed concerning the end. Your favor of the 2d Ulto was not recd till my arrival here on monday evening. I found contrary to my expectation that not only a very full house had been made on the first day, but that it had proceeded to the appointment of the President & other officers. Mr. Pendleton was put into the chair without opposition. Yesterday little more was done than settling some forms and Resolving that no question general or particular should be propounded till the whole plan should be considered & debated, clause by clause. This was moved by Col. Mason, and contrary to his expectations, concurred in by the other side. Today the discussions commenced in Committee of the whole. The Governor has declared the day of previous amendments passed, and thrown himself fully into the federal scale. Henry & Mason made a lame figure & appeared to take different and awkward ground. The federalists are a good deal elated by the existing prospect. I dare not however speak with certainty as to the decision. Kentucky has been extremely tainted, is supposed to be generally adverse, and every piece of address is going on privately to work on the local interests & prejudices of that & other quarters. In haste I am Dear Sir,—Your favor of came to hand by the mail of Wednesday. I did not write by several late returns for two reasons: one the improbability of your having got back to Mount Vernon; the other a bilious indisposition which confined me for several days. I am again tolerably well recovered. No question direct or indirect has yet been taken by which the state of parties could be determined, of course each is left to enjoy the hopes resulting from its own partial calculations. It is probable the majority on either side will not exceed 3, 4, 5, or 6. I indulge a belief that at this time the friends of the Constitution have the advantage in point of number. Great moderation as yet marks our proceedings. Whether it be the effect of temper, or of the equality of forces and the uncertainty of victory, will be seen by the event. We are at present on the Executive Department. Mr. H—y has not made any opposition to it, though it was looked for. He may however still mean to make one; or he may lay by for an exertion against the Judiciary. I find myself not yet restored and extremely feeble. No question has yet been taken by which the strength of parties can be determined. The calculations on different sides do not accord; each making them under the bias of their particular wishes. I think however the friends of the Constitution are most confident of superiority, and am inclined myself to think they have at this time the advantage of 3 or 4 or possibly more in point of number. The final question will probably decide the contest in a few days more. We are now on the Judiciary Department, against which the last efforts of the adversaries seem to be made. How far they will be able to make an impression, I cannot say. It is not probable that many proselytes will be made on either side. As this will be handed to you at Court you can make its contents known to Majr Moore and other friends to whom I have not time separately to write. With my regards to my mother & the family I remain yr affec. Son.—Mad. MSS. We got through the Constitution by paragraphs today. Tomorrow some proposition for closing the business will be made. On our side a ratification involving a few declaratory truths not affecting its validity will be tendered. The opposition will urge previous amendments. Their conversation today seemed to betray despair. Col. Mason in particular talked in a style which no other sentiment could have produced. He held out the idea of civil convulsions as the effects of obtruding the Government on the people. He was answered by several and concluded with declaring his determination for himself to acquiesce in the event whatever it might be. Mr. H—y endeavored to gloss what had fallen from his friend, declared his aversion to the Constitution to be such that he could not take the oath; but that he would remain in peaceable submission to the result. We calculate on a majority, but a bare one. It is possible nevertheless that some adverse circumstance may happen. I am, Dr Sr in haste Yrs entirely. —Wash. MSS. Yesterday carried us through the discussion of the constitution by paragraphs. Today will probably carry forward some proposition and debates relative to the final step to be taken. The opposing party will contend for previous amendments. On the other side a conciliatory declaration of certain fundamental principles in favor of liberty, in a form not affecting the validity and plenitude of the ratification, will be proposed. The final question is likely to be decided by a small majority. I do not know that either party despairs absolutely. The friends of the Convention seem to be in the best spirits; and I hope have the best reason to be so. At the same time it is not impossible they may miscalculate their number, and that accidents may reduce it below the requisite amount, two members on that side, who went away with a purpose of returning are still absent, it is said; and a third is so ill as to render his vote somewhat precarious. It may be questioned whether on any estimate this loss if it shd. continue may not endanger the results. On the question to-day for previous amendments, the votes stood 8o ays—88 noes. On the final question the ratification passed 89 ayes—79 noes. Subsequent amendments will attend the act; but are yet to be settled. The temper of the minority will be better known to-morrow. The proceedings have been without flaw or pretext of it; and there is no doubt that acquiescence if not cordiality will be manifested by the unsuccessful party. Two of the leaders however betray the effect of the disappointment, so far as it is marked in their countenances. Being informed that reports prevail not only that I am opposed to any amendments whatever to the new federal Constitution, but that I have ceased to be a friend to the rights of Conscience; and inferring from a conversation with my brother William, that you are disposed to contradict such reports as far as your knowledge of my sentiments may justify, I am led to trouble you with this communication of them. As a private Citizen it could not be my wish that erroneous opinions should be entertained, with respect to either of those points, particularly with respect to religious liberty. But having been induced, to offer my services to this district as its representative in the federal Legislature, considerations of a public nature make it proper that, with respect to both, my principles and views should be rightly understood. .  .  .  .  .  .  .  .  .  .  .  . .  .  .  .  .  .  .  .  .  .  .  . Our business here goes on very slowly, though in a spirit of moderation and accommodation which is so far flattering. The bill for regulating the quantum of duties is not yet come back from the Senate. Some alterations will be made, but none that affect the substance of the plan, unless it be the abolition of a small favor to the Nations in Alliance with us copied from the laws of Virginia. One of our Senators1 1 Lee. whose ideas on another point excite animadversions among his constituents seems not to consult their sentiments on this. I think myself that it is impolitic, in every view that can be taken of the subject, to put G. Britain at once on the footing of a, most favored nation. The bill for collecting the duties is now before the H. of Reps, and I fear will not be very quickly despatched. It has passed thro' several hands legal as well as mercantile, and, notwithstanding is in a crude state. It might certainly have been put into a better; though in every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil; and will I am persuaded, evince a greater facility in legislating uniformly for all the States than has been supposed by some of the best friends of the Union. . . . . The papers now covered contain a sketch of a very interesting discussion which consumed great part of the past week. The Constitution has omitted to declare expressly by what authority removals from office are to be made. Out of this silence four constructive doctrines have arisen, 1. that the power of removal may be disposed of by the Legislative discretion. To this it is objected that the Legislature might then confer it on themselves, or even on the House of Reps, which could not possibly have been intended by the Constitution. 2. that the power of removal can only be exercised in the mode of impeachment. To this the objection is that it would make officers of every description hold their places during good behavior, which could have still less been intended. 3. that the power of removal is incident to the power of appointment. To this the objections are that it would require the constant Session of the Senate, that it extends the mixture of Legislative & Executive power, that it destroys the responsibility of the President by enabling a subordinate Executive officer to intrench himself behind a party in the Senate, and destroys the utility of the Senate in their Legislative and Judicial characters, by involving them too much in the heats and cabals inseparable from questions of a personal nature; in fine, that it transfers the trust in fact from the President who being at all times impeachable as well as every 4th year eligible by the people at large, may be deemed the most responsible member of the Government, to the Senate who from the nature of that institution, is and was meant after the Judiciary & in some respects without that exception to be the most irresponsible branch of the Government. 4. that the Executive power being in general terms vested in the President, all power of an Executive nature, not particularly taken away must belong to that department, that the power of appointment only being expressly taken away, the power of Removal, so far as it is of an Executive nature must be reserved. In support of this construction it is urged that exceptions to general positions are to be taken strictly, and that the axiom relating to the separation of the Legislative & Executive functions ought to be favored. To this are objected the principle on which the 3d construction is founded, & the danger of creating too much influence in the Executive Magistrate. I lost no time in handing to the President the address inclosed in your favor of the 22 of May, and have postponed an acknowledgement of the latter in expectation of being able at the same time to cover the President's answer. This has been and continues to be delayed by a very serious indisposition, we hope he is not in much danger, but are by no means without our fears also. His disorders commenced in a fever which has greatly reduced him, and is terminating in a very large tumor which, unless it degenerate itself into a dangerous malady, will probably be remedial. I am particularly obliged by your favor of the 3d, which incloses your remarks on the Judiciary bill. It came to hand yesterday only, and I have not had time to compare your suggestions with the plan of the Senate: nor do I know the alterations which may have taken place in it since it has been under discussion. In many points, even supposing the outline a good one, which I have always viewed as controvertible, defects and inaccuracies were striking. Your ideas on the proposed discrimination between foreign Nations coincide I perceive exactly with those which have governed me. The Senate did not allow that no effort should be made for vindicating our commercial interests, but argued that a more effectual mode should be substituted. A Come. was appd. in that branch to report such a mode. The report made is founded on something like a retort of her restrictions in the W. Inda. channels. It is now said that as the measure would involve an imposition of extraordinary duties, the Senate cannot proceed in it. Mr. Gerry alluding to these circumstances moved two days ago for a bill giving further encouragement to trade & navigation, and obtained a Committee for the purpose. What will be the result is uncertain. If the attempt added to what has passed should as it probably will, be made known abroad, it may lead to apprehensions that may be salutary. "I am just favd. with yours of the 30th inst: and am glad to find your sentiments so decided as to the power of removal by the Presidt. Every letter to me and as far as I know to others here from Virga. ratifies the propriety of the decision of Congress. Our last discussions of moment have turned on the compensations. The bill as gone to the Senate allows six dollars a day to the members of both houses. My own idea was that it should have been less for the Reps. & more for the Senate. With equal emoluments the ablest men will prefer the H. of Reps. and the Senate will degenerate into an unfitness for the great dignity of its institution. The rate allowed is unpopular in this quarter of the Union. But the truth is that 6 dollars [is more necessary] for the distant states particularly S. C. & Georgia than it would be to N. Jersey, Connecticut, &c, and a defective allowance would put the states at a distance under disadvantages of a very serious nature. Add to this that a less sum than 6 dollars for the Senate (whose case was involved in that of the H. of Reps. after the vote agst. a discrimination) could not well be thought of. On these grounds the measure must rest for its vindication. I am afraid it will be disrelished in your part of Virga. & cannot say I am satisfied with it myself. With men of liberal turns and who know the former allowance made to Congress by the States and who moreover take into view the situation & voting of the different states, an apologetic reasoning on the subject will not be sufficient, with those of another cast, the case will be different . . ."—Va. Hist. Soc. MSS. For a week past the subject of amendts. has exclusively occupied the H. of Reps. Its progress has been exceedingly wearisome not only on account of the diversity of opinions that was to be apprehended, but of the apparent views of some to defeat by delaying a plan short of their wishes, but likely to satisfy a great part of their companions in opposition throughout the Union. It has been absolutely necessary in order to effect anything, to abbreviate debate, and exclude every proposition of a doubtful & unimportant nature. Had it been my wish to have comprehended every amendt. recom̃ended by Virga., I should have acted from prudence the very part to which I have been led by choice. Two or three contentious additions would even now prostrate the whole project. The week past has been devoted to the subject of amendments: all that remains is a formal vote on a fair transcript which will be taken this morning; and without debate I hope, as each of the propositions has been agreed to by two thirds of the House. The substance of the report of the Committee of eleven has not been much varied. It became an unavoidable sacrifice to a few who knew their concurrence to be necessary, to the dispatch if not the success of the business, to give up the form by which the amendts. when ratified would have fallen into the body of the Constitution, in favor of the project of adding them by way of appendix to it. It is already apparent I think that some ambiguities will be produced by this change, as the question will often arise and sometimes be not easily solved, how far the original text is or is not necessarily superceded, by the supplemental act. A middle way will be taken between the two modes, of proposing all the amendts. as a single act to be adopted or rejected in the gross, and of proposing them as independent amendts. each of which shall take place or not, as it may be individually decided on. The several propositions will be classed according to their affinity to each other, which will reduce them to the number of 5 or 6 in the whole, to go forth as so many amendts. unconnected with one another. I was favd. on Saturday with yours of the 2d instant. The Judiciary is now under consideration. I view it as you do, as defective both in its general structure, and many of its particular regulations. The attachment of the Eastern members, the difficulty of substituting another plan, with the consent of those who agree in disliking the bill, the defect of time &c, will however prevent any radical alterations. The most I hope is that some offensive violations of Southern jurisprudence may be corrected, and that the system may speedily undergo a reconsideration under the auspices of the Judges who alone will be able perhaps to set it to rights. The pressure of unfinished business has suspended the adjournment of Congs. till Saturday next. Among the articles which required it was the plan of amendments, on which the two Houses so far disagreed as to require conferences. It will be impossible I find to prevail on the Senate to concur in the limitation on the value of appeals to the Supreme Court, which they say is unnecessary, and might be embarrassing in questions of national or Constitutional importance in their principle, tho' of small pecuniary amount. They are equally inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term, too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the County. It was proposed to insert after the word Juries, "with the accustomed requisites," leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained. The truth is that in most of the States the practice is different, and hence the irreconcileable difference of ideas on the subject. In some States, jurors are drawn from, the whole body of the community indiscriminately; in others, from large districts comprehending a number of Counties; and in a few only from a single County. The Senate suppose also that the provision for vicinage in the Judiciary bill, will sufficiently quiet the fears which called for an amendment on this point. On a few other points in the plan the Senate refuse to join the House of Reps. Your favor of Jany. 9, inclosing one of Sept. last did not get to hand till a few days ago.* * See the letter in Ford's Writings of Jefferson, v., 115. The idea which the latter evolves is a great one; and suggests many interesting reflections to Legislators; particularly when contracting and providing for public debts. Whether it can be received in the extent to which your reasonings carry it, is a question which I ought to turn more in my thoughts than I have yet been able to do, before I should be justified in making up a full opinion on it. My first thoughts lead me to view the doctrine as not in all respects compatible with the course of human affairs. I will endeavour to sketch the grounds of my skepticism. "As the Earth belongs to the living, not to the dead, a living generation can bind itself only; in every Society the will of the majority binds the whole; according to the laws of mortality, a majority of those ripe for the exercise of their will do not live beyond the term of 19 years; to this term then is limited the validity of every act of the Society, nor can any act be continued beyond this term without an express declaration of the public will." This I understand to be the outline of the argument. I have not yet recd. a single line from Orange since I left it. The letter from my brother when at Alexa. is the only written information that I have had the pleasure of, a few lines from. Mr. Hite excepted. These gave an account of my sisters marriage, and added that about that period my mother was better. I am anxious to hear more on that subject, and indulge my hopes that her health will yet be reestablished.
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