The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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TO THOMAS JEFFERSON. |
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 | The writings of James Madison, |  |
TO THOMAS JEFFERSON.
I have written a number of letters to you since my return
here, and shall add this by another casual opportunity just
notified to me by Mr. St. John. Your favor of July 31 came
to hand the day before yesterday. The pamphlets of the
Marquis Condorcet & Mr. Dupont referred to in it have also
been received. Your other letters inclosed to the Delegation
have been and will be disposed of as you wish; particularly
those to Mr. Eppes & Col. Lewis.
Nothing has been done on the subject of the outfit, there
not having been a Congress of nine States for some time, nor
even of seven for the last week. It is pretty certain that
there will not again be a quorum of either number within the
present year, and by no means certain that there will be one
at all under the old Confederation. The Committee finding
that nothing could be done have neglected to make a report
as yet. I have spoken with a member of it in order to get
one made, that the case may fall of course and in a favorable
shape within the attention of the New Government. The
fear of a precedent will probably lead to an allowance for a
limited time of the salary,[87]
as enjoyed originally by foreign
ministers, in preference to a separate allowance for outfit. One
of the members of the treasury board, who ought, if certain facts
have not escaped his memory, to witness the reasonableness of
your calculations, takes occasion I find to impress a contrary idea.
to right.
The States which have adopted the New Constitution are all
proceeding to the arrangements for putting it into action in
March next. Pennsylva. alone has as yet actually appointed
deputies & that only for the Senate. My last mention that
these were Mr. R. Morris & a Mr. McClay. How the other
elections there & elsewhere will run is matter of uncertainty.
The Presidency alone unites the conjectures of the public.
The vice president is not at all marked out by the general
voice. As the President will be from a Southern State, it
falls almost of course for the other part of the Continent to
supply the next in rank. South Carolina may however think
of Mr. Rutledge unless it should be previously discovered that
votes will be wasted on him. The only candidates in the
Northern States brought forward with their known consent
are Handcock[88]
and Adams, and between these it seems probable
the question will lie. Both of them are objectionable & would
I think be postponed by the general suffrage to several others if
they would accept the place. Handcock is weak ambitious a
courtier of popularity, given to low intrigue, and lately reunited
by a factious friendship with S. Adams. J. Adams has made
himself obnoxious to many, particularly in the Southern States by
the political principles avowed in his book. Others recollecting
his cabal during the war against general Washington, knowing
his extravagant self-importance, and considering his preference
of an unprofitable dignity to some place of emolument better
adapted to private fortune as a proof of his having an eye to the
presidency, conclude that he would not be a very cordial second
to the General, and that an impatient ambition might even intrigue
for a premature advancement. The danger would be the
greater if particular factious characters, as may be the case,
should get into the public councils. Adams it appears, is not
unaware of some of the obstacles to his wish, and thro a letter
president.
The little pamphlet herewith inclosed will give you a collective
view of the alterations which have been proposed for the
new Constitution. Various and numerous as they appear
they certainly omit many of the true grounds of opposition.
The articles relating to Treaties, to paper money, and to contracts,
created more enemies than all the errors in the System
positive & negative put together. It is true nevertheless that
not a few, particularly in Virginia have contended for the proposed
alterations from the most honorable & patriotic motives;
and that among the advocates for the Constitution there are
some who wish for further guards to public liberty & individual
rights. As far as these may consist of a constitutional
declaration of the most essential rights, it is probable they
will be added; though there are many who think such addition
unnecessary, and not a few who think it misplaced in
such a Constitution. There is scarce any point on which the
party in opposition is so much divided as to its importance
and its propriety. My own opinion has always been in favor
of a bill of rights; provided it be so framed as not to imply
powers not meant to be included in the enumeration. At the
same time I have never thought the omission a material
defect, nor been anxious to supply it even by subsequent
amendment, for any other reason than that it is anxiously
desired by others. I have favored it because I supposed it
might be of use, and if properly executed could not be of
disservice. I have not viewed it in an important light—1. because
I conceive that in a certain degree, though not in the
extent argued by Mr. Wilson, the rights in question are
reserved by the manner in which the federal powers are
granted. 2 because there is great reason to fear that a positive
declaration of some of the most essential rights could not
be obtained in the requisite latitude. I am sure that the rights
of conscience in particular, if submitted to public definition
would be narrowed much more than they are likely ever to
England was that the Constitution by prohibiting religious
tests, opened a door for Jews Turks & infidels. 3. because
the limited powers of the federal Government and the jealousy
of the subordinate Governments, afford a security which has
not existed in the case of the State Governments, and exists
in no other. 4. because experience proves the inefficacy of a
bill of rights on those occasions when its controul is most
needed. Repeated violations of these parchment barriers
have been committed by overbearing majorities in every
State. In Virginia I have seen the bill of rights violated in
every instance where it has been opposed to a popular current.
Notwithstanding the explicit provision contained in that instrument
for the rights of Conscience, it is well known that a
religious establishment wd have taken place in that State, if
the Legislative majority had found as they expected, a
majority of the people in favor of the measure; and I am
persuaded that if a majority of the people were now of one
sect, the measure would still take place and on narrower
ground than was then proposed, notwithstanding the additional
obstacle which the law has since created. Wherever
the real power in a Government lies, there is the danger of
oppression. In our Governments the real power lies in the
majority of the Community, and the invasion of private
rights is chiefly to be apprehended, not from acts of Government
contrary to the sense of its constituents, but from acts
in which the Government is the mere instrument of the major
number of the Constituents. This is a truth of great importance,
but not yet sufficiently attended to; and is probably
more strongly impressed on my mind by facts, and reflections
suggested by them, than on yours which has contemplated
abuses of power issuing from a very different quarter. Whereever
there is an interest and power to do wrong, wrong will
generally be done, and not less readily by a powerful &
interested party than by a powerful and interested prince.
The difference so far as it relates to the superiority of republics
that interest may prompt more abuses of power in the former
than in the latter; and in the security in the former. agst an oppression
of more than the smaller part of the Society, whereas
in the former [latter] it may be extended in a manner to the
whole. The difference so far as it relates to the point in question
—the efficacy of a bill of rights in controuling abuses of
power—lies in this: that in a monarchy the latent force of the
nation is superior to that of the Sovereign, and a solemn charter
of popular rights must have a great effect, as a standard for
trying the validity of public acts, and a signal for rousing &
uniting the superior force of the community; whereas in a
popular Government, the political and physical power may
be considered as vested in the same hands, that is in a majority
of the people, and, consequently the tyrannical will of
the Sovereign is not [to] be controuled by the dread of an
appeal to any other force within the community. What use
then it may be asked can a bill of rights serve in popular
Governments? I answer the two following which, though
less essential than in other Governments, sufficiently recommend
the precaution: 1. The political truths declared in
that solemn manner acquire by degrees the character of
fundamental maxims of free Government, and as they become
incorporated with the national sentiment, counteract the impulses
of interest and passion. 2. Altho. it be generally true
as above stated that the danger of oppression lies in the
interested majorities of the people rather than in usurped
acts of the Government, yet there may be occasions on which
the evil may spring from the latter source; and on such, a bill
of rights will be a good ground for an appeal to the sense of
the community. Perhaps too there may be a certain degree
of danger, that a succession of artful and ambitious rulers
may by gradual & well timed advances, finally erect an independent
Government on the subversion of liberty. Should
this danger exist at all, it is prudent to guard agst it, especially
when the precaution can do no injury. At the same time I
danger on that side. It has been remarked that there is a
tendency in all Governments to an augmentation of power at
the expence of liberty. But the remark as usually understood
does not appear to me well founded. Power when it
has attained a certain degree of energy and independence goes
on generally to further degrees. But when below that degree,
the direct tendency is to further degrees of relaxation, until the
abuses of liberty beget a sudden transition to an undue degree
of power. With this explanation the remark may be true;
and in the latter sense only is it, in my opinion applicable to
the Governments in America. It is a melancholy reflection
that liberty should be equally exposed to danger whether the
Government have too much or too little power, and that the
line which divides these extremes should be so inaccurately
defined by experience.
Supposing a bill of rights to be proper the articles which
ought to compose it, admit of much discussion. I am inclined
to think that absolute restrictions in cases that are doubtful, or
where emergencies may overrule them, ought to be avoided.
The restrictions however strongly marked on paper will never
be regarded when opposed to the decided sense of the public,
and after repeated violations in extraordinary cases they will
lose even their ordinary efficacy. Should a Rebellion or insurrection
alarm the people as well as the Government, and a
suspension of the Hab. Corp. be dictated by the alarm, no
written prohibitions on earth would prevent the measure.
Should an army in time of peace be gradually established in
our neighborhood by Britn. or Spain, declarations on paper
would have as little effect in preventing a standing force for
the public safety. The best security agst these evils is to
remove the pretext for them. With regard to Monopolies,
they are justly classed among the greatest nuisances in Government.
But is it clear that as encouragements to literary
works and ingenious discoveries, they are not too valuable to
be wholly renounced? Would it not suffice to reserve in all
to be specified in the grant of it? Is there not also infinitely
less danger of this abuse in our Governments than in most
others? Monopolies are sacrifices of the many to the few.
Where the power is in the few it is natural for them to sacrifice
the many to their own partialities and corruptions. Where
the power as with us is in the many not in the few the danger
cannot be very great that the few will be thus favored. It is
much more to be dreaded that the few will be unnecessarily
sacrificed to the many.
I inclose a paper containing the late proceedings in Kentucky.
I wish the ensuing Convention may take no step injurious
to the character of the district, and favorable to the
views of those who wish ill to the U. States. One of my late
letters communicated some circumstances which will not fail
to occur on perusing the objects of the proposed Convention in
next month. Perhaps however there may be less connection
between the two cases than at first one is ready to conjecture.
I am, Dr sir with the sincerest esteem & affectn,
| The writings of James Madison, | |