University of Virginia Library

TO EDMUND RANDOLPH.[101]

Dear Sir,—Your two favors of the twenty-second
and twenty-seventh of March, have been received
since my last. In a preceding one you ask, what
tribunal is to take cognizance of Clark's offence? If
our own laws will not reach it, I see no possibility of
punishing it. But will it not come within the act of
the last session concerning treasons and other offences
committed without the commonwealth? I have had
no opportunity yet of consulting Mr. Otto on the
allegation of Oster touching the marriage of French
subjects in America. What is the conspicuous prosecution
which you suspect will shortly display a notable
instance of perjury?

I am glad to find that you are turning your
thoughts towards the business of May next. My
despair of your finding the necessary leisure, as signified
in one of your letters, with the probability that
some leading propositions at least would be expected
from Virginia, had engaged me in a closer attention
to the subject than I should otherwise have given. I
will just hint the ideas that have occurred, leaving
explanations for our interview.

I think with you, that it will be well to retain as
much as possible of the old Confederation, though I
doubt whether it may not be best to work the valuable
articles into the new system, instead of engrafting
the latter on the former. I am also perfectly of
your opinion, that, in framing a system, no material
sacrifices ought to be made to local or temporary
prejudices. An explanatory address must of necessity
accompany the result of the Convention on the main
object. I am not sure that it will be practicable to
present the several parts of the reform in so detached
a manner to the States, as that a partial adoption
will be binding. Particular States may view different
articles as conditions of each other, and would only
ratify them as such. Others might ratify them as
independent propositions. The consequence would
be that the ratifications of both would go for nothing.
I have not, however, examined this point thoroughly.
In truth, my ideas of a reform strike so deeply at the
old Confederation, and lead to such a systematic
change, that they scarcely admit of the expedient.

I hold it for a fundamental point, that an individual

independence of the States is utterly irreconcilable
with the idea of an aggregate sovereignty. I
think, at the same time, that a consolidation of the
States into one simple republic is not less unattainable
than it would be inexpedient. Let it be tried,
then, whether any middle ground can be taken,
which will at once support a due supremacy of the
national authority, and leave in force the local authorities
so far as they can be subordinately useful.

The first step to be taken is, I think, a change in
the principle of representation. According to the
present form of the Union, an equality of suffrage,
if not just towards the larger members of it, is at
least safe to them, as the liberty they exercise of
rejecting or executing the acts of Congress, is uncontrollable
by the nominal sovereignty of Congress.
Under a system which would operate without
the intervention of the States, the case would be
materially altered. A vote from Delaware would
have the same effect as one from Massachusetts or
Virginia.

Let the national Government be armed with a
positive and complete authority in all cases where
uniform measures are necessary, as in trade, &c.,
&c. Let it also retain the powers which it now
possesses.

Let it have a negative, in all cases whatsoever, on
the Legislative acts of the States, as the King of
Great Britain heretofore had. This I conceive to be
essential and the least possible abridgement of the
State sovereignties. Without such a defensive power,

every positive power that can be given on paper will
be unavailing. It will also give internal stability to
the States. There has been no moment since the
peace at which the Federal assent would have been
given to paper-money, &c., &c.

Let this national supremacy be extended also to
the Judiciary department. If the Judges in the last
resort depend on the States, and are bound by their
oaths to them and not to the Union, the intention
of the law and the interests of the nation may be
defeated by the obsequiousness of the tribunals to the
policy or prejudices of the States. It seems at least
essential that an appeal should lie to some national
tribunals in all cases which concern foreigners, or
inhabitants of other States. The admiralty jurisdiction
may be fully submitted to the National
Government.

A Government formed of such extensive powers
ought to be well organized. The Legislative department
may be divided into two branches. One of
them to be chosen every—years by the Legislatures
or the people at large; the other to consist of a
more select number, holding their appointments for
a longer term, and going out in rotation. Perhaps
the negative on the State laws may be most conveniently
lodged in this branch. A Council of Revision
may be superadded, including the great ministerial
officers.

A national Executive will also be necessary. I
have scarcely ventured to form my own opinion yet,
either of the manner in which it ought to be

constituted, or of the authorities with which it ought
to be clothed.

An article ought to be inserted expressly guaranteeing
the tranquillity of the States against internal
as well as external dangers.

To give the new system its proper energy, it will
be desirable to have it ratified by the authority of
the people, and not merely by that of the Legislatures.

I am afraid you will think this project, if not extravagant,
absolutely unattainable and unworthy of
being attempted. Conceiving it myself to go no
further than is essential, the objections drawn from
this source are to be laid aside. I flatter myself,
however, that they may be less formidable on trial
than in contemplation. The change in the principle
of representation will be relished by a majority of
the States, and those too of most influence. The
northern States will be reconciled to it by the actual
superiority of their populousness; the Southern by
their expected superiority on this point. This principle
established, the repugnance of the large States
to part with power will in a great degree subside, and
the smaller States must ultimately yield to the predominant
will. It is also already seen by many, and
must by degrees be seen by all, that, unless the
Union be organized efficiently on republican principles,
innovations of a much more objectionable form
may be obtruded, or, in the most favorable event,
the partition of the Empire, into rival and hostile
confederacies will ensue.