| | 1 | Author: | Madison
James
1751-1836 | Add | | | 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. | | | Similar Items: | Find |
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