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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO GEORGE WASHINGTON. wash. mss. - James Madison, The Writings, vol. 5 (1787-1790) [1904]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 5.

Part of: The Writings of James Madison, 9 vols.

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TO GEORGE WASHINGTON.wash. mss.

New York, Octr 18, 1787.

Dear Sir,—

I have been this day honored with your favor of the 10th instant, under the same cover with which is a copy of Col. Mason’s objections to the Work of the Convention.1 As he persists in the temper which produced his dissent it is no small satisfaction to find him reduced to such distress for a proper gloss on it; for no other consideration surely could have led him to dwell on an objection which he acknowledged to have been in some degree removed by the Convention themselves—on the paltry right of the Senate to propose alterations in money bills—on the appointment of the vice President President of the Senate instead of making the President of the Senate the vice President, which seemed to be the alternative—and on the possibility, that Congress may misconstrue their powers & betray their trust so far as to grant monopolies in trade &c—. If I do not forget too some of his other reasons were either not at all or very faintly urged at the time when alone they ought to have been urged, such as the power of the Senate in the case of treaties & of impeachments; and their duration in office. With respect to the latter point I recollect well that he more than once disclaimed opposition to it. My memory fails me also if he did not acquiesce in if not vote for, the term allowed for the further importation of slaves,1 and the prohibition of duties on exports by the States. What he means by the dangerous tendency of the Judiciary I am at some loss to comprehend. It was never intended, nor can it be supposed that in ordinary cases the inferior tribunals will not have final jurisdiction in order to prevent the evils of which he complains. The great mass of suits in every State lie between Citizen & Citizen, and relate to matters not of federal cognizance. Notwithstanding the stress laid on the necessity of a Council to the President I strongly suspect, tho’ I was a friend to the thing, that if such an one as Col. Mason proposed, had been established, and the power of the Senate in appointments to offices transferred to it, that as great a clamour would have been heard from some quarters which in general echo his objections. What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. drawn up by Col. Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the common law as heretofore & all Statutes of prior date to the 4 of James I to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and objections. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The “revisal of the laws” by a Com̃ittee of wch Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points; they wd. have done more, they would have brought over from G. B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they would have formed a digest of laws, instead of a Constitution. This objection surely was not brought forward in the Convention, or it wd have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded. Were it allowed the weight which Col. M. may suppose it deserves, it would remain to be decided whether it be candid to arraign the Convention for omissions which were never suggested to them—or prudent to vindicate the dissent by reasons which either were not previously thought of, or must have been wilfully concealed. But I am running into a comment as prolix as it is out of place.

I find by a letter from the Chancellor (Mr. Pendleton) that he views the act of the Convention in its true light, and gives it his unequivocal approbation. His support will have great effect. The accounts we have here of some other respectable characters vary considerably. Much will depend on Mr. Henry, and I [am] glad to find by your letter that his favorable decision on the subject may yet be hoped for.1 —The Newspapers here begin to teem with vehement & violent calumniations of the proposed Govt.. As they are chiefly borrowed from the Pensylvania papers, you see them of course. The reports however from different quarters continue to be rather flattering.

With the highest respect & sincerest attachment I remain Dear Sir, Yr Obedt & Affecte Servt

[1 ]See Washington’s letter in Ford’s Writings of Washington, xi., 168. Mason sent Washington a copy in his own hand of his “Objections to the Constitution of Government formed by the Convention.” (Wash. MSS.) It was afterward printed in a folio broadside. The draft and printed copy may be seen in Kate Mason Rowland’s George Mason, ii., Appendix. See also P. L. Ford’s Pamphlets on the Constitution, 326, and Elliot’s Debates, i., 494.

[1 ]This is hardly fair to Mason. The strongest speech delivered against slavery and the slave trade in the constitutional convention was his (ante, vol. iv., 266), and he voted with Madison against extending the permissive period for importing slaves. (ante, iv., 303, 305.)

[1 ]Henry wrote Washington, Oct. 19th, that he was not in accord with the constitution, but that “perhaps mature reflection” might produce a change in his sentiments. (Ford’s Writings of Washington, xi., 165, n.) He soon became the leader of the opponents of the constitution.