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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.

Author: James Madison
Editor: Gaillard Hunt

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

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TO GEORGE WASHINGTON.wash. mss.

Orange, Jan^y 14^th, 1789.

Dear Sir,

Your favor of the 2d instant, with the letters attending it never came to hand ’till last evening. I have good reason to believe that the delay happened between Alexand^a & Fred^g, rather than at or from the latter place. Mr. F. Maury pays particular attention to all letters which arrive there for me, and forwards them to Orange by opportunities which are frequent & safe. I apprehend there will be no impropriety in committing a confidential letter to that channel. As an additional precaution, I will desire him to be particularly attentive to any letter which may have your name on it.

I have heard from two only of the returns from the Electoral districts;1 the one in favor of Mr. Gilchrist—the other of General Stephens. He succeeded ag^st Col. Cabel by a majority of 82 votes. He owes his success to the coalition between the two parties in Spotsylv^a. My situation is unfavorable for intelligence from the State at large, and therefore I can say little of the prospects as to the Feb^y election.

I fear, from the vague accounts which circulate, that the federal candidates are likely to stand in the way of one another. This is not the case however in my district. The field is left entirely to Monroe & myself. The event of our competition will probably depend on the part to be taken by two or three descriptions of people, whose decision is not known, if not yet to be ultimately formed. I have pursued my pretensions much further than I had premeditated; having not only made great use of epistolary means, but actually visited two Counties, Culpeper & Louisa, and publicly contradicted the erroneous reports propagated ag^st me. It has been very industriously inculcated that I am dogmatically attached to the Constitution in every clause, syllable & letter, and therefore not a single amendment will be promoted by my vote, either from conviction or a spirit of accommodation.1 This is the report most likely to affect the election, and most difficult to be combated with success within the limited period. There are a number of others however which are auxiliaries to it.—With my respectful compliments to Mrs. Washington, & the others of your family,

I remain, Dear Sir, your most obed^t & affect^e. Serv^t.

TO HENRY LEE.mad. mss.

COPY OF REMARKS ON SITUATION OF GREAT FALLS OF POTOWMACK [SENT TO COL. H. LEE AT WHOSE REQUEST DRAWN UP]1 JANY 1789

The importance of the spott at the Great Falls of the Potowmack and the value of the property including it appear from the following considerations—

First: The singular fitness of the situation for every species of water works, merchants mills, Forges, Slitting & Plating [sic] mills, Sawmills &c, &c, may be erected here with greater advantages from nature than at any place perhaps within the whole compass of the United States. The spot was long ago marked out by a very sagacious undertaker, for these purposes, and has been left unimproved from no other cause than the want of Funds. The addition made to the natural advantages of the place, by the opening of the navigation above requires no explanation. Wheat, Timber &^c. can by that means be collected from an extent of Country which is capable of supplying them in the most ample quantities that can be desired. Iron ore also & mineral coal are distributed along the main River & its branches in great abundance, and can be brought to the works on the best terms.

Secondly the importance of the situation as a resting place for an extensive commerce.—That the commerce through this Channel will be extensive, will be best shewn, if all proof be not superfluous, by a few plain & known facts. The main river is already navigable NA miles above the falls. A Boat of NA tons burden came down last fall from NA with a load of NA and the navigation of that part of the river will be ready for general use as soon as the spring season comes on, or at farthest before the ensuing Summer is over. The Shanandoah branch may and probably will be, very soon, made navigable for 150 miles from its mouth which is miles above the Falls. The south branch is equally capable of the same improvement for 100 miles from its mouth which is NA miles above the falls. There are a number of smaller streams running into the Potowmac above the falls, which are either already navigable, or may easily be made so, not only on the Virginia but also on the Maryland sides. By means of the latter no small part of the produce now transported by land to Baltimore, from the upper parts of Maryland & the skirts of Penn^a. will be drawn into the navigation of the Potowmack. The great region of country embrac’d by these several waters is in general extremely fertile, particularly in the parts through which they immediately flow, is already settled and cultivated, and is found excellently adapted to almost every article which has been raised within this State. But the commerce of the Potomack will not be limited to this region, extensive as it is. Another prospect presents itself on the western side of the Alleghany mountains. The communication between the Atlantic and the western country, can be more easily established through the Potomac than through any other channel, the source of this river lies nearest to the sources of those which run westerly; its course forms the most direct line with the course of the latter; and having such of its natural obstructions as require locks all at one spot, it has commanded advantages over other channels for attracting the produce & supplying the consumption of great part of the fertile country on the Ohio and its upper branches, if not on the lakes also and the streams running into them.—That the scite in question will be one of the resting places for this extensive commerce results from several circumstances. 1. Wheat the staple article to be exported through this channel, will be here most conveniently turned into flour for the purpose. It will therefore be here purchased by the merchants or rather agents of the merchants, residing at the Seaport Towns; who will of course, keep at the same place mechandize, in order the more easily to pay for the produce, one side of commerce necessarily attracts the other. The place of buying will always become the place of selling also. There may be other articles, which will undergo some manufacturing process before exportation, and to which the same remark may be applied, But the arrangements established for a principal article will extend themselves to others which would otherwise require or produce them. 2. The navigation above being open two weeks earlier than below the falls, and the Town of Alexandria to which a good road may be made being not more than 17 miles distant there will be a farther inducement to make the falls a place of Exchange for exports and imports. 3. The navigation above being already fitted for use, & that below being not likely to be open for some time, and on account of its peculiar difficulties, perhaps a long time, the Falls will if proper measures be accelerated, have the habit of commerce in its favour & might be continued as the entrepôt from causes not otherwise entirely equal to the effect.

Thirdly. The convenience of the place for a manufacturing Town. This advantage is evident from the remarks already made. In no place can materials or provisions be more cheaply or plentifully assembled. Every branch of manufacture with Iron or other water works, must be particularly favoured at this spot, and as such are numerous and have mutual relations again with many other branches, a better seat for manufactories can scarcely be fancied. The place is moreover healthy, is surrounded by a fertile and well wooded country, and admits of an easy supply of every foreign implement & article which manufactures may stand in need of.

TO JAMES MADISON.mad. mss.

Mount Vernon Feb^y. 24, 891

Hon^d. Sir

The obstructions to my journey from the Snow, the River at Fredericksberg, and the unparallelled badness of the roads, prevented my arrival here sooner than the evening before last. Harry will be able to give the particulars of the Journey. I detained him yesterday in order to give both him & the horses a little rest after their fatigue; and shall leave it in some measure to himself, to return either by way of Fred^g. or Norman’s Ford, according to the state of the weather & the information he may receive concerning the latter route.—I am not yet decided as to the day on which I shall go forward from this place. Being now convinced from the state of the weather & the rivers that I could not possibly reach New York by the day fixed for the meeting of Cong^s. and if I could that there will not be a sufficient number of members for business, I shall think myself more at liberty to consult my own conveniency. By waiting a few days I promise myself also the company of some of my colleagues, particularly M^r. Page who will I think be sure to call on the General. M^r. R. B. Lee is the only member who has yet set out, according to my information. He has gone on to Alexand^r. but will wait I presume for company, at least untill the weather shall invite him to proceed.

I meet here with no news worth communicating. The inclosed papers, I rec^d. at Fredericksb^g. and may be read as a continuation of the intelligence from New York.

I find myself perfectly well after my ride, & hoping that this will find my mother in better health, and the rest of the family still well, I remain Y^r. affc^t. Son.

TO EDMUND RANDOLPH.mad. mss.

Alexandria, March 1st, 1789.

My dear friend,

This is the first convenient opportunity I have had for dropping you a line since I last came into the State. Your sanction to my remaining in N. York during the crisis of the elections, conveyed through Col. Carrington, never came to hand till I had arrived in Orange. It coincided so fully with my inclination, and indeed with my judgment, that had it been received in due time, I do not know but I should have disregarded all the pressing exhortations which stood opposed to your opinion. I am persuaded however that my appearance in the district was more necessary to my election than you then calculated. In truth it has been evinced by the experiment, that my absence would have left a room for the calumnies of antifederal partizans which would have defeated much better pretensions than mine. In Culpeper which was the critical County, a continued attention was necessary to repel the multiplied fasehoods which circulated. Whether I ought to be satisfied or displeased with my success, I shall hereafter be more able to judge. My present anticipations are not flattering. I see on the lists of Representatives a very scanty proportion who will share in the drudgery of business. And I foresee contentions first between federal and antifederal parties, and then between Northern & Southern Parties, which give additional disagreeableness to the prospect. Should the State Elections give an antifederal colour to the Legislatures, which from causes not antifederal in the people, may well happen, difficulties will again start up in this quarter, which may have a still more serious aspect on the Congressional proceedings.

In my last or one of my last letters was inclosed a Quere from Mr. St. John the French Consul at New York, relating to the law here which regulates the recording of deeds &c. As I shall on my return be applied to for an answer, I will thank you for the proper one as soon as your leisure will allow.

I shall go on from this tomorrow. On my arrival I shall attend as far as I can to whatever may deserve your perusal. Besides the private satisfaction which I shall have in the continuance of our correspondence, I promise myself the benefit of your suggestions on public subjects.

Present me respectfully to Mrs. R. and rely on the Affection with which I remain, Y^rs truly.

As your neighborhood gives you frequent interviews with the Presid^t of W^m & Mary, remind him of my best regards for him.

TO GEORGE WASHINGTON.wash. mss.

Baltimore, March 5th, 1789.

Dear Sir,

On our Journey hither we have fallen in with the Bearer of the Electoral Votes of Georgia. They are unanimous as to the President and are all thrown away on Individuals of the State as to the Vice President. The Representatives were not chosen when the Gentleman set out, but the election was to take place in a day or two after. General Matthews, he tells us will be one, Mr. Baldwin another, & the third either Mr. Osborne or Gen^l Jackson. All the Candidates I understand are well affected to the Constitution. In South Carolina the Votes for Presid^t were also unanimous, as the Gentleman informs us. Of the others 5 were given to Mr. Rutledge, and the remaining two not to Mr. Adams.

The badness of the Roads & the weather prevented our getting to this place sooner than last Evening, by which means we lose two days. R. H. Lee left this on his way to New York on Monday morning. Mr. White had preceded him a day or two.

With the highest respect & mo. affect. attach^t,

I am D^r Sir,

Y^rs.

TO GEORGE WASHINGTON.wash. mss.

Philad^a, March 8^th, 1789.

Dear Sir,

We arrived here yesterday evening where we have met with Mr. Dawson just from New York. When he left it, 18 representatives and 8 senators had assembled. It is not certain when the deficiencies will be made up. The most favorable conjectures postpone it to Monday se’nnight. The members attending are chiefly from the Eastward. I do not learn that a single member, except Mr. White is from a State South of Pennsylv^a; unless, indeed, D^r Tucker is to be included in the exception. The N. Jersey Rep^s are not yet announced. Mr. Clarke it is supposed will be one, Mr. Cadwallader, Mr. Boudinot, and Mr. Skureman, are talked of as the others.

I find that the communication made you from Kentucky corresponds with an official letter to Cong^s from Gov^r. St. Clair, which speaks of the same emissary, and the same errand. Notice has been transmitted of the affair to the Executive of Virg^a, in order that regular steps may be taken, if sufficient ground be afforded, for apprehending the incendiary. The project of G. M.1 for establishing a Colony beyond the Mississippi is also going on. It is the opinion of Mr. Brown, as explained to Mr. Griffin, that emigrations to the Spanish territory will be enticed from Kentucky, as rapidly, as the allurements of the latter place have obtained them from the Atlantic States. All these circumstances point out the conduct which the New Gov^t ought to pursue with regard to the Western Country & Spain.

I dropped you a few lines from Baltimore mentioning the unanimity of the Electoral Votes of S. Carol^a & Georgia for a Presid, & the manner in which the Secondary votes were disposed of.

I am D^r Sir Y^r truly Affect^e.

TO GEORGE WASHINGTON.wash. mss.

N. York, March 19, 1789.

Dear Sir,

On our arrival here we found that the number of Representatives on the spot had been stationary from the second day of the meeting. Mr. Page, Mr. Lee, & myself raised it to 21, and Mr. S. Griffin and Mr. Moore have been since added. The number of attending Senators continues at 8. When a Quorum will be made up in either House rests on vague conjecture, rather than on any precise information. It is not improbable I think that the present week will supply the deficiency in one, if not in both of them. The States most convenient, are among the defaulters. It will not be known, I am told, in this State, who the Representatives are, till some time next month. The federal party calculate on an equal division of the six. Mr. Lawrence for the City district, Mr. Floyd for the Long Island district, and Mr. Benson for a third. In New Jersey the election has been conducted in a very singular manner. The law having fixed no time expressly for closing the polls, they have been kept open three or four weeks in some of the Counties, by a rival jealousy between the Eastern & Western divisions of the State, and it seems uncertain when they would have been closed if the Governor had not interposed by fixing on a day for receiving the returns, and proclaiming the successful candidates. The day is passed, but I have not heard the result. The Western ticket in favor of Skureman, Boudinot, Cadwallader, & Sennickson if this be the name, is supposed to have prevailed; but an impeachment of the election by the unsuccessful competitors has been talked of. Two of the Representatives from Massachusetts, are also unknown to us. In one of the districts, it is supposed that a disaffected man has prevailed.

An English Packet has been long expected, and is not yet arrived. The state of foreign news remains of consequence little altered. The accounts of latest date through other channels shew that the progress in France towards a Constitutional establishment, is unchecked, and that a coalition between the King and the Commons ag^st the Nobility & Clergy, will direct the innovations.

With respectful Compliments to Mrs. Washington & the rest of the family, I am Dear Sir truly & affect^y Y^r Obed^t Serv^t.

TO GEORGE WASHINGTON.wash. mss.

New York, Mar. 26, 1789.

Dear Sir,

The inclosed copy of Morgan’s invitation1 to his fellow Citizens was obtained from one of his friends, and forwarded to me from Pennsylvania. It is the most authentic & precise evidence of the Spanish project that has come to my knowledge. The instrument referred to as retained in Morgan’s hands in order to be signed by the adventurers, would still further explain the transaction.

No Quorum is yet formed in either House. The Senate want two members; the House of Rep^g four. It is probable that the members from N. Jersey, who are at length proclaimed, two remaining members from Penn^a, and Col. Coles, who halted in Philad^a, will come in this evening and supply the deficiency in one branch. The Senate have no precise prospect of the small addition required to their numbers.

With unfeigned attachment, I am Dear Sir, respectfully

Your Obed^t. hble Serv^t,

TO THOMAS JEFFERSON.1

New York, March 29th, 1789.

Dear Sir,—

My last was committed in December to Mr. Gouverneur Morris. I was then on my way to Virginia. The elections for the new government commenced shortly after my arrival. The first was of Electors, to Ballot for a President and Vice President. The successful candidates were General Wood, Mr. Zach^y Johnson, Gen^l Edward Stephens, Doctor David Stuart, Mr. W. Fitzhugh of Chatham, Mr. Warner Lewis of Gloucester, Mr. Jno. Harvey, Mr. Walk, of or near Norfolk, Mr. Kello of Southampton. These nine were federalists. The remaining three, Mr. Patrick Henry, Mr. Roane of King and Queen, and Mr. Pride of Amelia, were of the adverse party. Two of the former party did not attend. The votes were unanimous with respect to General Washington, as appears to have been the case in each of the States. The secondary votes were given, among the federal members, chiefly to Mr. J. Adams, one or two being thrown away in order to prevent a possible competition for the Presidency. Governor Clinton was the secondary choice of the anti-federal members. In the succeeding election of Representatives, federalism was also proved to be the prevailing sentiment of the people. The successful candidates on this list are Mr. Moore, late of the Executive Council (from Rockingham,) Mr. Alexander White, Mr. Richard Bland Lee, Mr. John Page, (Rosewell,) Mr. Samuel Griffin, Mr. Brown, member of the old Congress, (from Kentucky,) J. Madison, Col. Parker, (late nav. officer at Norfolk,) Col. Isaac Coles, (of Halifax,) and Col. Bland. Of these, the seven first have been on the side of the Constitution; the three last in the opposition. Col. Parker appears to be very temperate, and it is not probable that both the others will be very inveterate. It was my misfortune to be thrown into a contest with our friend, Col. Monroe. The occasion produced considerable efforts among our respective friends. Between ourselves, I have no reason to doubt that the distinction was duly kept in mind between political and personal views, and that it has saved our friendship from the smallest diminution. On one side I am sure it is the case.

Notwithstanding the lapse of time since the birthday of the new Government, (the 4th of March,) I am under the necessity of informing you that a quorum is not yet formed, either in the Senate or House of Representatives. The season of the year, the peculiar badness of the weather, and the short interval between the epoch of election and that of meeting, form a better apology for the delay than will probably occur on your side of the Atlantic. The deficiency at present in the House of Representatives requires two members only for a Quorum, and in the Senate one only. A few days will, therefore, fit the Body for the first step, to wit, opening the Ballots for the President and Vice President. I have already said that General Washington will be the first by a unanimous suffrage. It is held to be certain that Mr. Adams, though refused a great many votes from different motives, will have the second appointment. A considerable delay will be unavoidable, after the ballots are counted, before the President can be on the spot, and, consequently, before any Legislative act can take place. Such a protraction of the inactivity of the Government is to be regretted on many accounts, but most on account of the loss of revenue. A prospect of the Spring importations led to the appointment of the first meeting at a time which, in other respects, was unseasonable.

It is not yet possible to ascertain precisely the complexion of the new Congress. A little time will be necessary to unveil it, and a little will probably suffice. With regard to the Constitution, it is pretty well decided that the disaffected party in the Senate amounts to two or three members only; and that in the other House it does not exceed a very small minority, some of which will also be restrained by the federalism of the States from which they come. Notwithstanding this character of the Body, I hope and expect that some conciliatory sacrifices will be made, in order to extinguish opposition to the system, or at least break the force of it, by detaching the deluded opponents from their designing leaders. With regard to the system of policy to which the Government is capable of rising, and by which its genius will be appreciated, I wait for some experimental instruction. Were I to advance a conjecture, it would be, that the predictions of an antidemocratic operation will be confronted with at least a sufficient number of the features which have marked the State Governments.

Since my arrival here I have received your favor of November 18th. It had been sent on to Virginia; but not reaching Fredericksburg before I passed that place, it followed me back hither. I am much concerned that your scheme of passing the ensuing summer in your native country has been defeated. Mr. Jay, with whom I have conversed on the subject, tells me that his answer to your public letter has explained the impossibility of giving effect to your wishes, no Congress having been formed under the old Confederation since the receipt of your letter, or, indeed, since the expiration of the last federal year. The most that can now be done will be to obtain from the new authority, as early as possible, some act which may leave the matter to your own discretion. Perhaps it may be neither more inconvenient to your private nor to the public affairs to make your visit in the fall instead of the Spring, and to pass the Winter instead of the Summer in America. The same cause on which you are to charge your disappointment in this instance prevented a decision on the question of outfit, stated in one of your former communications.

With some printed papers containing interesting articles, I inclose a manuscript copy of Col. Morgan’s invitation to persons disposed to seek their fortunes on the Spanish side of the Mississippi. There is no doubt that the project has the sanction of Gardoqui. It is a silly one on the part of Spain, and will probably end like the settlements on the Roman side of the Danube, with the concurrence of the declining empire. But it clearly betrays the plan suggested to you in a former letter, of making the Mississippi the bait for a defection of the Western people. Some of the leaders in Kentucky are known to favor the idea of connection with Spain. The people are as yet inimical to it. Their future disposition will depend on the measures of the new Government.

I omitted to mention that a dispute between the Senate of this State, which was federal, and the other branch, which was otherwise, concerning the manner of appointing Senators for the Congress, was so inflexibly persisted in that no appointment was made during the late session, and must be delayed for a considerable time longer, even if the dispute should on a second trial be accommodated. It is supposed by some that the superintending power of Congress will be rendered necessary by the temper of the parties. The provision for the choice of electors was also delayed until the opportunity was lost; and that for the election of Representatives so long delayed that the result will not be decided till tuesday next. It is supposed that at least three out of the six will be of the federal party. In New Jersey, the inaccuracy of the law providing for the choice of Representatives has produced an almost equal delay, and left room for contests, which, if brought by the disappointed candidates into the House, will add a disagreeable article to the list of its business.

I am much obliged for the two estimates on the subject of our foreign debt, and shall turn your ideas to the account which they deserve.

TO GEORGE WASHINGTON.wash. mss.

New York, April/March 6th, 1789.

Dear Sir,

The arrival of R. H. Lee yesterday has made up a Quorum of the Senate. A Quorum in the other House was made on wednesday last. The ballots will be opened to-day, unless an indisposition of Mr. Basset should prevent, which was not probable yesterday afternoon. The notifications of the President & Vice President will be left to the Senate. Mr. Charles Thomson will be the messenger to the former.

The papers will have made known that Mr. Mulenburg was the choice of the Representatives for their Speaker, & Mr. Beckley for their Clerk. The competitor of the former was Mr. Trumbul who had a respectable vote; of the latter Mr. S. Stockton, of new Jersey, who, on the first ballot, had the same number with Mr. Beckley.

A British Packet arrived some days ago, but has not brought as far as I have learned, any public letters. The other information brought has passed into our Gazettes, and will have reached you thro’ that channel.

I am Dear Sir with the highest respect & attachment Your Obed^t & very h^ble Servt.

Your favor, inclosing a letter rec^d at Mount Vernon for me has been duly received.

SPEECHES IN THE FIRST CONGRESS—FIRST SESSION.1

APRIL 9. DUTIES ON IMPORTS.

From what has been suggested by the gentlemen that have spoken on the subject before us, I am led to apprehend we shall be under the necessity of travelling further into an investigation of principles than what I supposed would be necessary, or had in contemplation when I offered the propositions before you.

It was my view to restrain the first essay on this subject principally to the object of revenue, and make this rather a temporary expedient than any thing permanent.2 I see, however, that there are strong exceptions against deciding immediately on a part of the plan, which I had the honor to bring forward, as well as against an application to the resources mentioned in the list of articles just proposed by the gentleman from Pennsylvania. (Mr. Hartley.)

I presume, that, however much we may be disposed to promote domestic manufactures, we ought to pay some regard to the present policy of obtaining revenue. It may be remarked also, that by fixing on a temporary expedient for this purpose, we may gain more than we shall lose by suspending the consideration of the other subject until we obtain fuller information of the state of our manufactures. We have at this time the strongest motives for turning our attention to the point I have mentioned; every gentleman sees that the prospect of our harvest from the Spring importations is daily vanishing; and if the committee delay levying and collecting an impost until a system of protecting duties shall be perfected, there will be no importations of any consequence on which the law is to operate, because, by that time, all the Spring vessels will have arrived. Therefore, from a pursuit of this policy, we shall suffer a loss equal to the surplus which might be expected from a system of higher duties.

I am sensible that there is great weight in the observation that fell from the honorable gentleman from South Carolina, (Mr. Tucker,) that it will be necessary, on the one hand, to weigh and regard the sentiments of the gentlemen from the different parts of the United States; but, on the other hand, we must limit our consideration on this head, and, notwithstanding all the deference and respect we pay to those sentiments, we must consider the general interest of the Union; for this is as much every gentleman’s duty to consider as is the local or State interest—and any system of impost that this committee may adopt must be founded on the principles of mutual concession.

Gentlemen will be pleased to recollect, that those parts of the Union which contribute more under one system than the other, are also those parts more thinly planted, and consequently stand most in need of national protection; therefore they will have less reason to complain of unequal burdens.

There is another consideration: the States that are most advanced in population, and ripe for manufactures, ought to have their particular interests attended to in some degree. While these States retained the power of making regulations of trade, they had the power to protect and cherish such institutions; by adopting the present Constitution they have thrown the exercise of this power into other hands; they must have done this with an expectation that those interests would not be neglected here.

I am afraid, sir, on the one hand, that if we go fully into a discussion of the subject, we shall consume more time than prudence would dictate to spare; on the other hand, if we do not develope it, and see the principles on which we mutually act, we shall subject ourselves to great difficulties. I beg leave, therefore, to state the grounds on which my opinion, with respect to the matter under consideration, is founded, namely, whether our present system should be a temporary or a permanent one? In the first place, I own myself the friend to a very free system of commerce, and hold it as a truth, that commercial shackles are generally unjust, oppressive, and impolitic; it is also a truth, that if industry and labor are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened Legislature could point out. Nor do I think that the national interest is more promoted by such restrictions than that the interest of individuals would be promoted by legislative interference directing the particular application of its industry. For example, we should find no advantage in saying that every man should be obliged to furnish himself, by his own labor, with those accommodations which depend on the mechanic arts, instead of employing his neighbor, who could do it for him on better terms. It would be of no advantage to the shoemaker to make his own clothes to save the expense of the tailor’s bill, nor of the tailor to make his own shoes to save the expense of procuring them from the shoemaker. It would be better policy to suffer each of them to employ his talents in his own way. The case is the same between the exercise of the arts and agriculture—between the city and the country—and between city and town; each capable of making particular articles in abundance to supply the other: thus all are benefited by exchange, and the less this exchange is cramped by Government, the greater are the proportions of benefit to each. The same argument holds good between nation and nation, and between parts of the same nation.

In my opinion it would be proper also for gentlemen to consider the means of encouraging the great staple of America, I mean agriculture; which I think may justly be styled the staple of the United States, from the spontaneous productions which nature furnishes, and the manifest advantage it has over every other object of emolument in this country. If we compare the cheapness of our land with that of other nations, we see so decided an advantage in that cheapness, as to have full confidence of being unrivalled. With respect to the object of manufactures, other countries may and do rival us; but we may be said to have a monopoly in agriculture; the possession of the soil, and the lowness of its price, give us as much a monopoly in this case as any nation or other parts of the world have in the monopoly of any article whatever; but with this advantage to us, that it cannot be shared nor injured by rivalship.

If my general principle is a good one, that commerce ought to be free, and labor and industry left at large to find its proper object, the only thing which remains will be to discover the exceptions that do not come within the rule I have laid down. I agree with the gentleman from Pennsylvania, that there are exceptions important in themselves, and which claim the particular attention of the committee. Although the freedom of commerce would be advantageous to the world, yet, in some particulars, one nation might suffer to benefit others, and this ought to be for the general good of society.

If America was to leave her ports perfectly free, and make no discrimination between vessels owned by her citizens and those owned by foreigners, while other nations make this discrimination, it is obvious that such policy would go to exclude American shipping altogether from foreign ports, and she would be materially affected in one of her most important interests. To this we may add another consideration, that by encouraging the means of transporting our productions with facility, we encourage the raising them: and this object, I apprehend, is likely to be kept in view by the General Government.

Duties laid on imported articles may have an effect which comes within the idea of national prudence. It may happen that materials for manufactures may grow up without any encouragement for this purpose; it has been the case in some of the States, but in others regulations have been provided, and have succeeded in producing some establishments, which ought not to be allowed to perish, from the alteration which has taken place: it would be cruel to neglect them and divert their industry to other channels; for it is not possible for the hand of man to shift from one employment to another without being injured by the change. There may be some manufactures, which, being once formed, can advance towards perfection without any adventitious aid, while others, for want of the fostering hand of Government, will be unable to go on at all. Legislative attention will therefore be necessary to collect the proper objects for this purpose, and this will form another exception to my general principle.

I observe that a sumptuary prohibition is within the view of some of the proposed articles, and forms another exception. I acknowledge that I do not, in general, think any great national advantage arises from restrictions passed on this head, because, as long as a distinction in point of value subsists, sumptuary duties, in some form or other, will prevail and take effect.

Another exception is embargoes in time of war. These may necessarily occur and shackle the freedom of commerce; but the reasons for this are so obvious, that it renders any remark unnecessary.

The next exception that occurs, is one on which great stress is laid by some well informed men, and this with great plausibility. That each nation should have within itself the means of defence, independent of foreign supplies: that in whatever relates to the operations of war, no State ought to depend upon a precarious supply from any part of the world. There may be some truth in this remark, and therefore it is proper for legislative attention. I am, though, well persuaded that the reasoning on this subject has been carried too far. The difficulties we experienced a few years ago of obtaining military supplies, ought not furnish too much in favor of an establishment which would be difficult and expensive; because our national character is now established and recognised throughout the world, and the laws of war favor national exertion more than intestine commotion, so that there is good reason to believe that, when it becomes necessary, we may obtain supplies from abroad as readily as any other nation whatsoever. I have mentioned this because I think I see something among the enumerated articles that seems to favor such a policy.

The impost laid on trade for the purpose of obtaining revenue may likewise be considered as an exception; so far, therefore, as revenue can be more conveniently and certainly raised by this than any other method, without injury to the community, and its operation will be in due proportion to the consumption, which consumption is generally proportioned to the circumstances of individuals, I think sound policy dictates to use this means; but it will be necessary to confine our attention at this time peculiarly to the object of revenue, because the other subject involves some intricate questions, to unravel which we perhaps are not prepared. I have no objection to the committee’s accepting the propositions offered by the gentleman from Pennsylvania, because so far as we can enumerate the proper objects, and apply specific duties to them, we conform to the practice prevalent in many of the States, and adopt the most laudable method of collecting revenue, at least preferable to laying a general tax. Whether, therefore, we consult ease and convenience in collection, or pursuing habits already adopted and approved, specific duties, as far as the articles can be properly enumerated, is the most eligible mode of obtaining the end in contemplation. Upon the whole, as I think some of the propositions may be productive of revenue, and some may protect our domestic manufactures, though the latter subject ought not to be too confusedly blended with the former, I hope the committee will receive them, and let them lie over, in order that we may have time to consider how far they are consistent with justice and policy.1

APRIL 21. DUTIES ON IMPORTS.

Some gentlemen have seemed to call in question the policy of discriminating between nations in commercial alliance with the United States, and those with whom no treaties exist. For my own part, I am well satisfied that there are good and substantial reasons for making it. In the first place, it may not be unworthy of consideration, that the public sentiments of America will be favorable to such discrimination. I am sure, with respect to that part from which I come, it will not be a pleasing ingredient in your laws, if they find foreigners of every nation put on a footing with those in alliance with us. There is another reason, which, perhaps, is more applicable to some parts of the Union than others; one of the few nations with which America has formed commercial connexions has relaxed considerably in that rigid policy it before pursued—not so far, to be sure, as America could wish, with respect to opening her ports to our trade; but she has permitted our ready built ships a sale, and entitles them to the same advantage, when owned by her own citizens, as if they had been built in France, subjecting the sale to a duty of five per cent. The British market receives none; the disabilities of our ships to trade with their colonies continue, even if they are purchased by the subjects of Great Britain; of consequence, they cannot be sold without a considerable loss. Nay, so cautious are they to prevent the advantages we naturally possess, that they will not suffer a British ship to be repaired in America, beyond a certain proportion of her value; they even will not permit our vessels to be repaired in their ports.

Another consideration has some weight with me in deciding the question of discrimination. The policy of our ally, from the views of the minister employed, has frequently been adverse to the interest of this country. The person who has had the charge of our affairs at that Court has long been soliciting a relaxation in our favor, and although it cannot be declared that he has succeeded, yet there is reason to believe he has made some impressions, which our conduct ought to avoid effacing; they are such as merit national attention, and might justify a discrimination at this time, although it may be proper to hold ourselves at liberty to pursue that policy which a change may make necessary. There are also other considerations which ought to be taken into view. From artificial or adventitious causes, the commerce between America and Great Britain exceeds what may be considered its natural boundary. I find from an examination of the accounts of tonnage for the three large States of Massachusetts, Virginia, and South Carolina, that the tonnage of nations in alliance with us holds no proportion with that of Great Britain, or of the United States. This is a proof that a very small direct commerce takes place between those countries and this; that there is less of direct intercourse than there would naturally be if those extraneous and adventitious causes did not prevent it; such as the long possession of our trade, their commercial regulations calculated to retain it, their similarity of language and manners, their conformity of laws and other circumstances—all these concurring have made their commerce with us more extensive than their natural situation would require it to be. I would wish, therefore, to give such political advantages to those nations, as might enable them to gain their proportion of our direct trade from the nation who has acquired more than it is naturally her due. From this view of the subject, I am led to believe it would be good policy to make the proposed discrimination between them. Is it not also of some importance, that we should enable nations in treaty with us to draw some advantage from our alliance, and thereby impress those Powers that have hitherto neglected to treat with us, with the idea that advantages are to be gained by a reciprocity of friendship? If we give every thing equally to those who have or have not formed treaties, surely we do not furnish to them any motive for courting our connexion.

It has been objected, that the price of our produce at foreign markets would not bear this additional burden, and that the freight must be paid by the planters. It will be unnecessary, after what was said by the gentleman from Pennsylvania, (Mr. Fitzsimons,) to take up the time of the committee in observing that foreigners must receive our tobacco, rice, &c., in American shipping, if they cannot be otherwise got. There may be a discrimination made in other respects besides in tonnage, so that a very high impost on this article need not be insisted upon. But will any gentleman say, British vessels ought to enjoy in American ports greater advantages than are enjoyed by Americans in British ports? Yet were the duties laid equal in both cases, the British merchant would have a very great superiority. In the first place, some of the most valuable ports which she possesses, and most conducive to our interest, are absolutely closed, while every port in the United States is open to her without restriction or limitation. Again, even in those which it is permitted America to enter her vessels, she must bring nothing but the produce of her own soil, whilst the British ship makes circuitous voyages, and brings with her the produce of every quarter of the globe. These are material advantages; and take the whole of these observations together, I think they furnish substantial reasons for making the proposed discrimination.

APRIL 21. DUTIES ON IMPORTS.

I am a friend to free commerce, and, at the same time, a friend to such regulations as are calculated to promote our own interest, and this on national principles. The great principle of interest is a leading one with me, and yet my combination of ideas on this head leads me to a very different conclusion from that made by the gentleman from New York, (Mr. Lawrence.) I wish we were under less necessity than I find we are to shackle our commerce with duties, restrictions, and preferences; but there are cases in which it is impossible to avoid following the example of other nations in the great diversity of our trade. Some reasons for this were mentioned on a former occasion; they have been frequently illustrated in the progress of this business, and the decision of the committee has proved them to be necessary.

I beg leave to remark, in answer to a train of ideas which the gentleman last up has brought into view, that although interest will, in general, operate effectually to produce political good, yet there are causes in which certain factitious circumstances may divert it from its natural channel, or throw or retain it in an artificial one. Have we not been exercised on this topic for a long time past? Or why has it been necessary to give encouragement to particular species of industry, but to turn the stream in favor of an interest that would not otherwise succeed? But laying aside the illustration of these causes, so well known to all nations, where cities, companies, or opulent individuals engross the business from others, by having had an uninterrupted possession of it, or by the extent of their capitals being able to destroy a competition, let us proceed to examine what ought to be our conduct on this principle, upon the present occasion. Suppose two commercial cities, one possessed of enormous capitals and long habits of business, whilst the other is possessed of superior natural advantages, but without that course of business and chain of connexions which the other has: is it possible, in the nature of things, that the latter city should carry on a successful competition with the former? Thus it is with nations; and when we consider the vast quantities of our produce sent to the different parts of Europe, and the great importations from the same places; that almost all of this commerce is transacted through the medium of British ships and British merchants, I cannot help conceiving that, from the force of habit and other conspiring causes, that nation is in possession of a much greater proportion of our trade than she is naturally entitled to. Trade, then, being restrained to an artificial channel, is not so advantageous to America as a direct intercourse would be; it becomes therefore the duty of those to whose care the public interest and welfare are committed, to turn the tide to a more favorable direction.

In the trade of South Carolina is employed annually about 56,977 tons of shipping. The proportion of French and Dutch is about 2,100 tons, while that of Great Britain is about 19,000. In Massachusetts the quantity is about 85,551 tons; it is stated, that there are belonging to the State, 76,857, the remainder is foreign, and mostly British. In Virginia we have 56,272 tons; 26,903 British, and only 2,664 of the French and Dutch. I cannot, from this view of the subject, be persuaded to believe that every part of our trade flows in those channels which would be most natural and profitable to us, or those which reason would dictate to us, if we were unincumbered of old habits and other accidental circumstances that hurry us along.

It has been asked by the gentleman from New York (Mr. Lawrence) what evidence we had that the public sentiments of America were in favor of discrimination? Perhaps it would be improper on this occasion to adduce any other proof of the fact than from the transactions of public bodies; and here, I think, is abundant proof to be found. The State of Virginia, if I am not mistaken, lays a double duty on tonnage; French and Dutch vessels pay half a dollar per ton, while the vessels of Great Britain are subjected to one dollar. There are other distinctions in our revenue laws manifesting the same principle; some of them establish a preference to French wines and brandy. In Maryland, a similar policy has prevailed. I believe the difference there is about one-third in favor of our allies, (if I err, the gentlemen from that State can set me right;) in Pennsylvania, there is a discrimination of about a fourth. I do not certainly recollect, but I believe the like policy exists in other States; but I have not had an opportunity of searching their laws on this point, but what I have enumerated are facts affording substantial proof that the public sentiment does favor the discrimination.

MAY 9. DUTIES ON IMPORTS.

The right understanding of this subject is of great importance. The discussion has been drawn out to a very considerable length on former occasions. The chain of ideas on which the subject is suspended, is not very long, nor consists of many links. The present Constitution was framed to supply the defects of the one that has preceded it. The great and material defects of it are well known to have arisen from its inability to provide for the demands of justice and security of the Union. To supply those defects, we are bound to fulfil the public engagements; expectation is anxiously waiting the result of our deliberations; it cannot be satisfied without a sufficient revenue to accomplish its purposes. We cannot obtain the money any other way but by taxation. Among the various objects of this nature, an impost on merchandise imported is preferable to all others, and among the long list of articles included in the bill, there is not one more proper for the purpose than the article under consideration. The public sentiment has strongly pointed it out as an object of revenue. I conceive, therefore, that it will be our duty to draw from this source all the money that it is capable of yielding. I am sure that it will not exceed our wants, nor extend to the injury of our commerce. How far the powers of Government are capable of going on this occasion, is matter of opinion; we have had no direct experiment of what can be done under the energy and popularity of the new system; we must recur to other sources for information, and then, unless the circumstances are alike, the comparison may not be true. We have been referred to the experience of other nations; if that is to guide us on this subject, I am sure we shall find precedents for going much further than is now proposed. If I do not mistake the calculations that I have seen of duties on importation, they amount to more on an average than fifteen per cent.; the duty on ardent spirits in all nations exceeds what is in contemplation to be laid in the United States. I am sensible that the means which are used by those nations to ensure the collection, would be odious and improper in this country; but I believe the means which this country is capable of using, without exciting complaint or incurring too much expense, would be as adequate to secure a duty of fifteen per cent. as the powers of any other nation could be to obtain ninety or one hundred per cent. If we consult the experience of the United States, it does not admonish us that we are proceeding too far; there are duties now under collection, in some States, that amount nearly to the same as those we have in contemplation. A duty collected under the feeble operation of the State Governments, cannot be supposed beyond our powers, when those duties have been collected by them, with feeble powers, but under a competition, not to say opposition, of the neighboring States. I am led, from a knowledge of these circumstances, to believe that when we have established some general rule, and have the co-operation of all the members of the Union, we shall be able to do what is proposed by this bill, better than any one State could execute it with its separate strength. If we consult the opinion of the merchants, we shall not find them a very sure guide. Merchants do not pretend to infallibility; but if they did, they have given a proof to the contrary, by their difference of opinion on this subject. Gentlemen of that profession, both within these walls and out of doors, have been as much divided on this point as any other description of men. I believe them to be the best informed as to the probable effects of an impost system, but they are not exempt from the infirmities of human nature. We know there is an essential difference between the interest of merchants and the interest of commerce; we know there may be distinctions also between the interest of commerce and of revenue; and that in some cases we must sacrifice the one to the other. I am not sure that we are not under the necessity of doing both in the business before us. It is barely matter of opinion what revenue the General Government will be able to draw from the system now proposed. This being the case, I have endeavored to make up mine, from the best materials in my power. I pay great respect to the opinions of mercantile gentlemen, and am willing to concede much to them, so far as their opinions are regulated by experience; but if I am to be guided by this information, it will not lead me to agree to the reduction of the duties in the manner contended for. It is said, that if we reduce at all, we must go through the whole. Now I doubt whether the duty on the article of rum exceeds that proportion which pervades the long list before us. It does not amount to more than thirty per cent., while some other articles stand at forty; some articles again that are not enumerated, but which fall within the general mass at five per cent., are more likely to be introduced clandestinely than this article, if it stood at fifty per cent. I am sure, if we reduce the whole system in the manner now proposed, all the duty we shall be able to collect will be very incompetent to what the public necessities demand. We must turn our eyes, then, to some other source that will fill up the deficiency. There are but two objects to which, in this dilemma, we can have recourse—direct taxation and excises. Direct taxation is not contemplated by any gentleman on this floor, nor are our constituents prepared for such a system of revenue; they expect it will not be applied to, until it is found that sufficient funds cannot be obtained in any other way. Excises would give particular disgust in some States, therefore gentlemen will not make up the deficiency from that quarter. I think, upon the whole, it is better to try what will be produced by a plan which is favored by the public sentiment. This will give a support to our laws equal to the greatest energy of a strong execution. The citizens of America know that their individual interest is connected with the public. We shall then have the strong motive of interest acting in favor of the Government in a peculiar manner. But I am not inclined to trust too much to this security. I would take in the aid of the best regulations in our power to provide; these, acting in concert, would give a moral certainty to the faithful collection of the revenue. But if gentlemen notwithstanding will persist in contending against such a system, and cannot offer us a substitute, we must fail of the primary object for which the Government was created. If upon experience we find that the duties cannot be safely collected, it may be proper to reduce them; but if we set them too low in the first instance, and they do not yield a sufficiency to answer the just demands of the public creditors and the expenses of Government, the public reputation must suffer.

I need not inform gentlemen we are surrounded with difficulties; they are seen on every side; but they appear as few and as surmountable on the side of the bill, as they do in any other part of the prospect. If we give way on this article, we are to do so upon all others. It is not for any reason peculiar to Jamaica spirits that the reduction is moved for; hence, I conceive, if gentlemen meet with success in opposing this duty, we shall be reduced to a system inadequate to our wants, and thereby defeat the chief object of our appointment.1

May 11. titles.

I may be well disposed to concur in opinion with gentlemen that we ought not to recede from our former vote on this subject, yet at the same time I may wish to proceed with due respect to the Senate, and give dignity and weight to our own opinion, so far as it contradicts theirs, by the deliberate and decent manner in which we decide. For my part, Mr. Speaker, I do not conceive titles to be so pregnant with danger as some gentlemen apprehend. I believe a President of the United States, clothed with all the powers given in the Constitution, would not be a dangerous person to the liberties of America, if you were to load him with all the titles of Europe or Asia. We have seen superb and august titles given, without conferring power and influence, or without even obtaining respect. One of the most impotent sovereigns in Europe has assumed a title as high as human invention can devise; for example, what words can imply a greater magnitude of power and strength than that of High Mightiness? This title seems to border almost upon impiety; it is assuming the pre-eminence and omnipotence of the Deity; yet this title, and many others cast in the same mould, have obtained a long time in Europe, but have they conferred power? Does experience sanction such an opinion? Look at the Republic I have alluded to, and say if their present state warrants the idea?

I am not afraid of titles, because I fear the danger of any power they could confer, but I am against them because they are not very reconcilable with the nature of our Government or the genius of the people. Even if they were proper in themselves, they are not so at this juncture of time. But my strongest objection is founded in principle; instead of increasing, they diminish the true dignity and importance of a Republic, and would in particular, on this occasion, diminish the true dignity of the first magistrate himself. If we give titles, we must either borrow or invent them. If we have recourse to the fertile fields of luxuriant fancy, and deck out an airy being of our own creation, it is a great chance but its fantastic properties would render the empty phantom ridiculous and absurd. If we borrow, the servile imitation will be odious, not to say ridiculous also; we must copy from the pompous sovereigns of the East, or follow the inferior potentates of Europe; in either case, the splendid tinsel or grogeous robe would disgrace the manly shoulders of our chief. The more truly honorable shall we be, by showing a total neglect and disregard to things of this nature; the more simple, the more Republican we are in our manners, the more rational dignity we shall acquire; therefore, I am better pleased with the report adopted by the House, than I should have been with any other whatsoever.

The Senate, no doubt, entertain different sentiments on this subject. I would wish, therefore, to treat their opinion with respect and attention. I would desire to justify the reasonable and republican decision of this House to the other branch of Congress, in order to prevent a misunderstanding. But that the motion of my worthy colleague (Mr. Parker) has possession of the House, I would move a more temperate proposition, and I think it deserves some pains to bring about that good will and urbanity, which, for the despatch of public business, ought to be kept up between the two Houses. I do not think it would be a sacrifice of dignity to appoint a Committee of Conference, but imagine it would tend to cement that harmony which has hitherto been preserved between the Senate and this House; therefore, while I concur with the gentlemen who express, in such decided terms, their disapprobation of bestowing titles, I concur also with those who are for the appointment of a Committee of Conference, not apprehending they will depart from the principles adopted and acted upon by the House.

MAY 12. DUTIES ON IMPORTS.

Mr. Madison said his mind was incapable of discovering any plan that would answer the purpose the committee have in view, and not produce greater evils than the one under consideration. He thought an excise very objectionable, but as no actual proposition for entering into such a system was before the committee, he forebore to say any thing further about it. He admitted an excise would obviate in part some of the difficulties; but he did not think the answer given to his argument altogether satisfactory; yet there was another argument he urged on a former occasion remaining unanswered—it was, that, at this moment, the fisheries, distilleries, and all their connexions, were laboring under heavier duties than what is now proposed; true, the duty is collected in a different mode, but it affects the consumer in the same manner. The gentlemen have said, to be sure, that the duty is evaded; but if half is collected, it will amount to more than six cents per gallon.

It is said that a tax on molasses will be unpopular, but not more so than a tax on salt. Can gentlemen state more serious apprehensions in the former than the latter case? yet the committee did not forego a productive fund, because the article was a necessary of life, and in general consumption. If there is the disposition that is represented for people to complain of the oppression of Government, have not the citizens of the Southern States more just ground of complaint than others? The system can only be acceptable to them, because it is essentially necessary to be adopted for the public good.

Gentlemen argue, that a tax on molasses is unpopular, and prove it by experience under the British Government. If this is to be adduced as a proof of the popularity of the measure, what are we to say with respect to a tax on tea? Gentlemen remembered, no doubt, how odious this kind of tax was thought to be throughout America; yet the House had, without hesitation, laid a considerable duty upon it. He did not imagine that a duty on either of those articles, was in itself objectionable; it was the principle upon which the tax was laid that made them unpopular under the British Government.

It is said that this tax is unjust; now, he had not a single idea of justice, that did not contradict the position. If it be considered as it relates to rum, he was certain the consumers of foreign rum paid a larger proportion of revenue into the Treasury than the consumers of country rum; they paid more than equal distributive justice required; if it was considered as it respected molasses, there would appear no injustice. Molasses was consumed in other States; but if it was not, sugar was used in its stead, and subjected to a duty full as high as that on molasses. But dismissing both these considerations, and even admitting the whole weight to fall on the Northern States, it would not be disproportioned, because, in the long list of enumerated articles subject to a high duty, they imported few or none; indeed, the articles were pretty generally taxed for the benefit of the manufacturing part of the northern community; see loaf sugar, candles, cheese, soap, &c. He hoped gentlemen would not infer from this observation, that he thought the encouragement held out by the bill to manufactures improper; far from it; he was glad to see their growing consequence, and was disposed to give them every aid in his power. From this view of the subject, he was inclined to adhere to the bill, and not make any reduction.

MAY 14. DUTIES ON IMPORTS.

When he offered this amendment to the bill, he thought its propriety was so obvious and striking, that it would meet no opposition. To pass a bill,1 not limited in duration, which was to draw revenue from the pockets of the people, appeared to be dangerous in the administration of any Government; he hoped, therefore, the House would not be less cautious in this particular than other nations are, who profess to act upon sound principles. He imagined it might be considered by their constituents as incompatible with the spirit of the Constitution, and dangerous to republican principles, to pass such a law unlimited in its duration.

He hoped it would not be understood by gentlemen who opposed his motion, that he supposed them to be actuated with a desire to do injury to either of those principles; he believed them to be moved only by an ardent desire to promote the general welfare, by the re-establishment of public credit. He would heartily join his labors with theirs, to effect this object, but wished to do it in a way, that while they served their country, they might secure the liberties of the people, and do honor to themselves. Besides the restoration of public credit, he thought the act had in view the encouragement of a particular description of people, which might lead them into enterprises of a peculiar nature, for the protection of which the public faith seemed to be pledged. But would gentlemen infer from hence, that no alteration ought to take place if the manufactures were well established? The subject appeared to him in a twofold point of view; first, to provide for the exigencies of Government, and second, for the establishment of public credit; but he thought both these objects could be obtained without making the bill perpetual. If the Government showed a proper attention to the punctual performance of its engagements, it would obtain the latter; the other would be secured by making provision as the occasion demanded. If the bill was to be made perpetual, it would be continued after the purpose for which it was adopted had ceased; the error would in this case be irremediable; whereas, if its limitation was determined, it would always be in the power of the Government to make it commensurate with what the public debts and contingencies required.

The Constitution, as had already been observed, places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be best acquainted with their interests and ability. In order to make them more particularly acquainted with these objects, the democratic branch of the Legislature consisted of a greater number, and were chosen for a shorter period, so that they might revert more frequently to the mass of the people. Now, if a revenue law was made perpetual, however unequal its operation might be, it would be out of the power of this House to effect an alteration; for if the President chose to object to the measure, it would require two-thirds of both Houses to carry it. Even if the House of Representatives were unanimous in their opinion that the law ought to be repealed, they would not be able to carry it, unless a great majority appeared in the Senate also.

He observed, that an honorable gentleman had thought that no appropriation of the public money could be made for a longer term than two years. This was true, as it related to the support of armies; but the question here did not appear to be respecting an appropriation. It was the revenue itself, which, without any appropriation, might continue flowing into the public treasury independent of the will of the people, and might thereby become a convenience in the hands of some other department of the Government, for the purpose of oppression. Experience might also forcibly suggest the necessity and importance of alterations in the law, yet, without this clause, it might never be in the power of the House to make them.1

MAY 19. POWER OF REMOVAL FROM OFFICE.

Mr. Madison did not concur with the gentleman in his interpretation of the Constitution.2 What, said he, would be the consequence of such construction? It would in effect establish every officer of the Government on the firm tenure of good behaviour; not the heads of Departments only, but all the inferior officers of those Departments, would hold their offices during good behaviour, and that to be judged of by one branch of the Legislature only on the impeachment of the other. If the Constitution means this by its declarations to be the case, we must submit; but I should lament it as a fatal error interwoven in the system, and one that would ultimately prove its destruction. I think the inference would not arise from a fair construction of the words of that instrument.

It is very possible that an officer who may not incur the displeasure of the President, may be guilty of actions that ought to forfeit his place. The power of this House may reach him by the means of an impeachment, and he may be removed even against the will of the President; so that the declaration in the Constitution was intended as a supplemental security for the good behaviour of the public officers. It is possible the case I have stated may happen. Indeed, it may, perhaps, on some occasion, be found necessary to impeach the President himself; surely, therefore, it may happen to a subordinate officer, whose bad actions may be connived at or overlooked by the President. Hence the people have an additional security in this Constitutional provision.

I think it absolutely necessary that the President should have the power of removing from office; it will make him, in a peculiar manner, responsible for their conduct, and subject him to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses. On the Constitutionality of the declaration I have no manner of doubt.

I look upon every Constitutional question, whatever its nature may be, as of great importance. I look upon the present to be doubly so, because its nature is of the highest moment to the well-being of the Government. I have listened with attention to the objections which have been stated, and to the replies that have been made, and I think the investigation of the meaning of the Constitution has supported the doctrine I brought forward. If you consult the expediency, it will be greatly against the doctrine advanced by gentlemen on the other side of the question. See to what inconsistency gentlemen drive themselves by their construction of the Constitution. The gentleman from South Carolina, (Mr. Smith,) in order to bring to conviction and punishment an offender in any of the principal offices, must have recourse to a breach of the common law, and yet he may there be found guilty, and maintain his office, because he is fixed by the Constitution. It has been said, we may guard against the inconveniency of that construction, by limiting the duration of the office to a term of years; but, during that term, there is no way of getting rid of a bad officer but by impeachment. During the time this is depending, the person may continue to commit those crimes for which he is impeached, because if his construction of the Constitution is right, the President can have no more power to suspend than he has to remove.

What fell from one of my colleagues (Mr. Bland) appears to have more weight than any thing hitherto suggested. The Constitution, at the first view, may seem to favor his opinion; but that must be the case only at the first view; for, if we examine it, we shall find his construction incompatible with the spirit and principles contained in that instrument.

It is said, that it comports with the nature of things, that those who appoint should have the power of removal; but I cannot conceive that this sentiment is warranted by the Constitution; I believe it would be found very inconvenient in practice. It is one of the most prominent features of the Constitution, a principle that pervades the whole system, that there should be the highest possible degree of responsibility in all the Executive officers thereof; any thing, therefore, which tends to lessen this responsibility, is contrary to its spirit and intention, and, unless it is saddled upon us expressly by the letter of that work, I shall oppose the admission of it into any act of the Legislature. Now, if the heads of the Executive departments are subjected to removal by the President alone, we have in him security for the good behaviour of the officer. If he does not conform to the judgment of the President in doing the executive duties of his office, he can be displaced. This makes him responsible to the great Executive power, and makes the President responsible to the public for the conduct of the person he has nominated and appointed to aid him in the administration of his department. But if the President shall join in a collusion with this officer, and continue a bad man in office, the case of impeachment will reach the culprit, and drag him forth to punishment. But if you take the other construction, and say he shall not be displaced but by and with the advice and consent of the Senate, the President is no longer answerable for the conduct of the officer; all will depend upon the Senate. You here destroy a real responsibility without obtaining even the shadow; for no gentleman will pretend to say the responsibility of the Senate can be of such a nature as to afford substantial security. But why, it may be asked, was the Senate joined with the President in appointing to office, if they have no responsibility? I answer, merely for the sake of advising, being supposed, from their nature, better acquainted with the character of the candidates than an individual; yet even here the President is held to the responsibility—he nominates, and, with their consent, appoints. No person can be forced upon him as an assistant by any other branch of the Government.

There is another objection to this construction, which I consider of some weight, and shall therefore mention to the committee. Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connexion between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive? I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause.

MAY 22. CITIZENSHIP OF THE UNITED STATES.

I think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this House or not; but it will depend on the decision of a previous question, whether he has been seven years a citizen of the United States or not.

From an attention to the facts which have been adduced, and from a consideration of the principles established by the Revolution, the conclusion I have drawn is, that Mr. Smith was, on the declaration of independence, a citizen of the United States; and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this House. I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature, so far as they are applicable to the present case.

It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principle before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles.

It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage, but, in general, place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.

It is well known to many gentlemen on this floor, as well as to the public, that the petitioner1 is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the King of that nation, unless, by some adventitious circumstance, the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the Sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the Revolution. The Sovereign cannot make a citizen by any act of his own; he can confer denizenship: but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British empire, where birth has not endowed the person with that privilege, he must be naturalized by an act of Parliament.

What was the situation of the people of America, when the dissolution of their allegiance took place by the declaration of independence? I conceive that every person who owed this primary allegiance to the particular community in which he was born, retained his right of birth, as a member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British Sovereign. If he were not a minor, he became bound, by his own act, as a member of the society who separated with him from a submission to a foreign country. If he were a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature. What was the allegiance, as a citizen of South Carolina, he owed to the King of Great Britain? He owed his allegiance to him as a King of that society to which, as a society, he owed his primary allegiance. When that society separated from Great Britain, he was bound by that act, and his allegiance transferred to that society, or the Sovereign which that society should set up; because it was through his membership of the society of South Carolina that he owed allegiance to Great Britain.

This reasoning will hold good, unless it is supposed that the separation which took place between these States and Great Britain, not only dissolved the union between those countries, but dissolved the union among the citizens themselves: that the original compact, which made them altogether one society, being dissolved, they could not fall into pieces, each part making an independent society; but must individually revert into a state of nature; but I do not conceive that this was, of necessity, to be the case; I believe such a revolution did not absolutely take place. But in supposing that this was the case, lies the error of the memorialist. I conceive the colonies remained as a political society, detached from their former connexion with another society, without dissolving into a state of nature, but capable of substituting a new form of Government in the place of the old one, which they had, for special considerations, abolished. Suppose the State of South Carolina should think proper to revise her constitution, abolish that which now exists, and establish another form of Government: surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. Mr. Smith being then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society, with respect to the question of independence and change of Government; and if afterwards he had taken part with the enemies of his country, he would have been guilty of treason against that Government to which he owed allegiance, and would have been liable to be prosecuted as a traitor.

If it be said, that very inconvenient circumstances would result from this principle, that it would constitute all those persons who are natives of America, but who took part against the revolution, citizens of the United States, I would beg leave to observe, that we are deciding a question of right, unmixed with the question of expediency, and must, therefore, pay a proper attention to this principle. But I think it can hardly be expected by gentlemen that the principle will operate dangerously. Those who left their country, to take part with Britain, were of two descriptions—minors, or persons of mature age. With respect to the latter, nothing can be inferred with respect to them from the decision of the present case; because they had the power of making an option between the contending parties; whether this was a matter of right or not is a question which need not be agitated in order to settle the case before us. Then, with respect to those natives who were minors at the Revolution, and whose case is analogous to Mr Smith’s, if we are bound by the precedent of such a decision as we are about to make, and it is declared that they owe a primary allegiance to this country, I still think we are not likely to be inundated with such characters; so far as any of them took part against us, they violated their allegiance, and opposed our laws; so, then, there can be only a few characters, such as were minors at the Revolution, and who have never violated their allegiance by a foreign connexion, who can be affected by the decision of the present question. The number, I admit, is large who might be acknowledged citizens on my principles, but there will very few be found daring enough to face the laws of the country they have violated, and against which they have committed high treason.

So far as we can judge by the laws of Carolina, and the practice and decision of that State, the principles I have adduced are supported; and I must own, that I feel myself at liberty to decide, that Mr. Smith was a citizen at the declaration of independence, a citizen at the time of his election and, consequently, entitled to a seat in this Legislature.1

JUNE 8. AMENDMENTS TO THE CONSTITUTION.

I am sorry to be accessary to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the Whole, I think we might have rose and resumed the consideration of other business before this time; that is, so far as it depended upon what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States, conformably to the fifth article of the Constitution.

I will state my reasons why I think it proper to propose amendments, and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this House. But I cannot do this, and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe, that if Congress will devote but one day to this subject, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures. It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it, among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this Constitution. The acquiescence which our fellow-citizens show under the Government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject. It is to provide those securities for liberty which are required by a part of the community; I allude in a particular manner to those two States that have not thought fit to throw themselves into the bosom of the Confederacy. It is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States which have not come in, that we have seen prevailing in those States which have embraced the Constitution.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the Constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done, while no one advantage arising from the exercise of that power shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose. And in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the Constitution, we must feel for the Constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a reconsideration of the whole structure the Government—for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself. But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents: such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow-citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the Constitution. There have been objections of various kinds made against the Constitution. Some were levelled against its structure because the President was without a council; because the Senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary.

It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by Congress to the State Legislatures, are these:

First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and that in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to —, after which the proportion shall be so regulated by Congress, that the number shall never be less than —, nor more than —, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: “But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.”

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldiers shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit:

But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.

Ninthly. That article 7th be numbered as article 8th.

The first of these amendments relates to what may be called a bill of rights. I will own that I never considered this provision so essential to the Federal Constitution as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless. I am aware that a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision not only unnecessary, but even improper; nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the Constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the Federal Constitution, we shall find, that, although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency. It may be said, in some instances, they do no more than state the perfect equality of mankind. This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a Constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact, which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the Legislative, Executive, and Judicial branches, shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other.

But, whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.

It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Governments, as well as under the General Government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the Constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, (for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation,) which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments? I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government.

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

It has been said that it is unnecessary to load the Constitution with this provision, because it was not found effectual in the constitution of the particular States. It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.

In the next place, I wish to see that part of the Constitution revised which declares that the number of Representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one Representative to every State which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the State conventions, and even in the opinion of the friends to the Constitution, an alteration here is proper. It is the sense of the people of America, that the number of Representatives ought to be increased, but particularly that it should not be left in the discretion of the Government to diminish them, below that proportion, which certainly is in the power of the Legislature, as the Constitution now stands; and they may, as the population of the country increases, increase the House of Representatives to a very unwieldy degree. I confess I always thought this part of the Constitution defective, though not dangerous; and that it ought to be particularly attended to whenever Congress should go into the consideration of amendments.

There are several minor cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the Legislature to ascertain its own emolument, is one to which I allude. I do not believe this is a power which, in the ordinary course of Government, is likely to be abused. Perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone, therefore, so far as to fix it, that no law varying the compensation, shall operate until there is a change in the Legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish, also, in revising the Constitution, we may throw into that section, which interdicts the abuse of certain powers in the State Legislatures, some other provisions of equal, if not greater importance than those already made. The words, “No State shall pass any bill of attainder, ex post facto law,” &c., were wise and proper restrictions in the Constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should, therefore, wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this Constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the Supreme Court of the United States, upon an appeal on an action for a small debt. To remedy this, declare that no appeal shall be made unless the matter in controversy amounts to a particular sum; this, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped, will quiet and reconcile the minds of the people to that part of the Constitution.

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps other words may define this more precisely than the whole of the instrument now does. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentleman will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the Government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronised by a respectable number of our fellow-citizens; and if we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this House the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support, I shall content myself, for the present, with moving “that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the Constitution of the United States.” By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the House. I should advocate greater despatch in the business of amendments, if I were not convinced of the absolute necessity there is of pursuing the organization of the Government; because I think we should obtain the confidence of our fellow-citizens, in proportion as we fortify the rights of the people against the encroachments of the Government.1

JUNE 16. POWER OF REMOVAL FROM OFFICE.

If the construction of the Constitution is to be left to its natural course, with respect to the Executive powers of this Government, I own that the insertion of this sentiment1 in law may not be of material importance, though, if it is nothing more than a mere declaration of a clear grant made by the Constitution, it can do no harm; but if it relates to a doubtful part of the Constitution, I suppose an exposition of the Constitution may come with as much propriety from the Legislature, as any other department of the Government. If the power naturally belongs to the Government, and the Constitution is undecided as to the body which is to exercise it, it is likely that it is submitted to the discretion of the Legislature, and the question will depend upon its own merits.

I am clearly of opinion with the gentleman from South Carolina, (Mr. Smith,) that we ought in this, and every other case, to adhere to the Constitution, so far as it will serve as a guide to us, and that we ought not to be swayed in our decisions by the splendor of the character of the present Chief Magistrate, but to consider it with respect to the merit of men who, in the ordinary course of things, may be supposed to fill the Chair. I believe the power here declared is a high one, and, in some respects, a dangerous one; but, in order to come to a right decision on this point, we must consider both sides of the question: the possible abuses which may spring from the single will of the First Magistrate, and the abuse which may spring from the combined will of the Executive and Senatorial disqualification.

When we consider that the First Magistrate is to be appointed at present by the suffrages of three millions of people, and, in all human probability, in a few years’ time by double that number, it is not to be presumed that a vicious or bad character will be selected. If the Government of any country on the face of the earth was ever effectually guarded against the election of ambitious or designing characters to the first office of the State, I think it may with truth be said to be the case under the Constitution of the United States. With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the President of the United States. Where the people are disposed to give so great an elevation to one of their fellow-citizens, I own that I am not afraid to place my confidence in him, especially when I know he is impeachable for any crime or misdemeanor before the Senate, at all times; and that, at all events, he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office. Under these circumstances, although the trust is a high one, and in some degree, perhaps, a dangerous one, I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.

It is evidently the intention of the Constitution, that the first Magistrate should be responsible for the Executive department; so far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country. Again, is there no danger that an officer, when he is appointed by the concurrence of the Senate, and has friends in that body, may choose rather to risk his establishment on the favor of that branch, than rest it upon the discharge of his duties to the satisfaction of the Executive branch, which is constitutionally authorized to inspect and control his conduct? And if it should happen that the officers connect themselves with the Senate, they may mutually support each other, and for want of efficacy reduce the power of the President to a mere vapor; in which case, his responsibility would be annihilated, and the expectation of it unjust. The high Executive officers, joined in cabal with the Senate, would lay the foundation of discord, and end in an assumption of the Executive power, only to be removed by a revolution in the Government. I believe no principle is more clearly laid down in the Constitution than that of responsibility. After premising this, I will proceed to an investigation of the merits of the question upon Constitutional ground.

I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first glance. I am inclined to think, that a free and systematic interpretation of the plan of Government will leave us less at liberty to abate the responsibility than gentlemen imagine. I have already acknowledged that the powers of the Government must remain as apportioned by the Constitution. But it may be contended, that where the Constitution is silent, it becomes a subject of legislative discretion; perhaps, in the opinion of some, an argument in favor of the clause may be successfully brought forward on this ground: I, however, leave it for the present untouched.

By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the Government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. In the first section of the first article, it is said, that all Legislative powers herein granted shall be vested in a Congress of the United States. In the second article, it is affirmed that the Executive power shall be vested in a President of the United States of America. In the third article, it is declared that the Judicial power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as Congress may, from time to time, ordain and establish. I suppose it will be readily admitted, that so far as the Constitution has separated the powers of these great departments, it would be improper to combine them together; and so far as it has left any particular department in the entire possession of the powers incident to that department, I conceive we ought not to qualify them further than they are qualified by the Constitution. The Legislative powers are vested in Congress, and are to be exercised by them uncontrolled by any other department, except the Constitution has qualified it otherwise. The Constitution has qualified the Legislative power, by authorizing the President to object to any act it may pass, requiring, in this case, two-thirds of both Houses to concur in making a law; but still the absolute Legislative power is vested in the Congress with this qualification alone.

The Constitution affirms, that the Executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The Constitution says, that in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the Constitution has invested all Executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his Executive authority.

The question now resolves itself into this, Is the power of displacing an Executive power? I conceive that if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws. If the Constitution had not qualified the power of the President in appointing to office, by associating the Senate with him in that business, would it not be clear that he would have the right, by virtue of his Executive power, to make such appointment? Should we be authorized, in defiance of that clause in the Constitution,—“The Executive power shall be vested in a President,” to unite the Senate, with the President in the appointment to office? I conceive not. If it is admitted that we should not be authorized to do this, I think it may be disputed whether we have a right to associate them in removing persons from office, the one power being as much of an Executive nature as the other; and the first only is authorized by being excepted out of the general rule established by the Constitution, in these words, “the Executive power shall be vested in the President.”

The Judicial power is vested in a Supreme Court; but will gentlemen say the judicial power can be placed elsewhere, unless the Constitution has made an exception? The Constitution justifies the Senate in exercising a judiciary power in determining on impeachments; but can the judicial power be further blended with the powers of that body? They cannot. I therefore say it is incontrovertible, if neither the Legislative nor Judicial powers are subjected to qualifications, other than those demanded in the Constitution, that the Executive powers are equally unabateable as either of the others; and inasmuch as the power of removal is of an Executive nature, and not affected by any Constitutional exception, it is beyond the reach of the Legislative body.

If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.

JUNE 17. POWER OF REMOVAL FROM OFFICE.

However various the opinions which exist upon the point now before us, it seems agreed on all sides, that it demands a careful investigation and full discussion. I feel the importance of the question, and know that our decision will involve the decision of all similar cases. The decision that is at this time made, will become the permanent exposition of the Constitution; and on a permanent exposition of the Constitution will depend the genius and character of the whole Government. It will depend, perhaps, on this decision, whether the Government shall retain that equilibrium which the Constitution intended, or take a direction towards aristocracy or anarchy among the members of the Government. Hence, how careful ought we to be to give a true direction to a power so critically circumstanced! It is incumbent on us to weigh with particular attention, the arguments which have been advanced in support of the various opinions with cautious deliberation. I own to you, Mr. Chairman, that I feel great anxiety upon this question; I feel an anxiety, because I am called upon to give a decision in a case that may affect the fundamental principles of the Government under which we act, and liberty itself. But all that I can do on such an occasion is, to weigh well every thing advanced on both sides with the purest desire to find out the true meaning of the Constitution, and to be guided by that, and an attachment to the true spirit of liberty, whose influence I believe strongly predominates here.

Several constructions have been put upon the Constitution relative to the point in question. The gentleman from Connecticut (Mr. Sherman) has advanced a doctrine which was not touched upon before. He seems to think (if I understood him rightly) that the power of displacing from office is subject to Legislative discretion; because it having a right to create, it may limit or modify as it thinks proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the Legislative, Executive, and Judicial powers of Government; and when I consider, that, if the Legislature has a power, such as is contended for, they may subject and transfer at discretion powers from one department of our Government to another; they may, on that principle, exclude the President altogether from exercising any authority in the removal of officers; they may give it to the Senate alone, or the President and Senate combined; they may vest it in the whole Congress, or they may reserve it to be exercised by this House. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it.

Another doctrine, which has found very respectable friends, has been particularly advocated by the gentleman from South Carolina, (Mr. Smith.) It is this: when an officer is appointed by the President and Senate, he can only be displaced for malfeasance in his office by impeachment. I think this would give a stability to the Executive department, so far as it may be described by the heads of departments, which is more incompatible with the genius of republican Governments in general, and this Constitution in particular, than any doctrine which has yet been proposed. The danger to liberty, the danger of mal-administration, has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall be glad to know what security we have for the faithful administration of the Government? Every individual, in the long chain which extends from the highest to the lowest link of the Executive Magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty.

The doctrine, however, which seems to stand most in opposition to the principles I contend for, is, that the power to annual an appointment is, in the nature of things, incidental to the power which makes the appointment. I agree that if nothing more was said in the Constitution than that the President, by and with the advice and consent of the Senate, should appoint to office, there would be a great force in saying that the power of removal resulted by a natural implication from the power of appointing. But there is another part of the Constitution, no less explicit than the one on which the gentleman’s doctrine is founded; it is that part which declares that the Executive power shall be vested in a President of the United States. The association of the Senate with the President in exercising that particular function, is an exception to this general rule; and exceptions to general rules, I conceive, are ever to be taken strictly. But there is another part of the Constitution, which inclines, in my judgment, to favor the construction I put upon it; the President is required to take care that the laws be faithfully executed. If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end. Now, if the officer when once appointed is not to depend upon the President for his official existence, but upon a distinct body, (for where there are two negatives required, either can prevent the removal,) I confess I do not see how the President can take care that the laws be faithfully executed. It is true, by a circuitous operation he may obtain an impeachment, and even without this it is possible he may obtain the concurrence of the Senate, for the purpose of displacing an officer; but would this give that species of control to the Executive Magistrate which seems to be required by the Constitution? I own, if my opinion was not contrary to that entertained by what I suppose to be the minority on this question, I should be doubtful of being mistaken, when I discovered how inconsistent that construction would make the Constitution with itself. I can hardly bring myself to imagine the wisdom of the convention who framed the Constitution contemplated such incongruity.

There is another maxim which ought to direct us in expounding the Constitution, and is of great importance. It is laid down, in most of the Constitutions or bills of rights in the republics of America; it is to be found in the political writings of the most celebrated civilians, and is every where held as essential to the preservation of liberty, that the three great departments of Government be kept separate and distinct; and if in any case they are blended, it is in order to admit a partial qualification, in order more effectually to guard against an entire consolidation. I think, therefore, when we review the several parts of this Constitution, when it says that the Legislative powers shall be vested in a Congress of the United States, under certain exceptions, and the Executive power vested in the President with certain exceptions, we must suppose they were intended to be kept separate in all cases in which they are not blended, and ought, consequently, to expound the Constitution so as to blend them as little as possible.

Every thing relative to the merits of the question as distinguished from a Constitutional question, seems to turn on the danger of such a power vested in the President alone. But when I consider the checks under which he lies in the exercise of this power, I own to you I feel no apprehensions but what arise from the dangers incidental to the power itself; for dangers will be incidental to it, vest it where you please. I will not reiterate what was said before with respect to the mode of election, and the extreme improbability that any citizen will be selected from the mass of citizens who is not highly distinguished by his abilities and worth; in this alone we have no small security for the faithful exercise of this power. But, throwing that out of the question, let us consider the restraints he will feel after he is placed in that elevated station. It is to be remarked, that the power in this case will not consist so much in continuing a bad man in office, as in the danger of displacing a good one. Perhaps the great danger, as has been observed, of abuse in the Executive power, lies in the improper continuance of bad men in office. But the power we contend for will not enable him to do this; for if an unworthy man be continued in office by an unworthy President, the House of Representatives can at any time impeach him, and the Senate can remove him, whether the President chooses or not. The danger then consists merely in this: the President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this House, before the Senate for such an act of mal-administration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. Can he accomplish this end? No; he can place no man in the vacancy whom the Senate shall not approve; and if he could fill the vacancy with the man he might choose, I am sure he would have little inducement to make an improper removal. Let us consider the consequences. The injured man will be supported by the popular opinion; the community will take side with him against the President; it will facilitate those combinations, and give success to those exertions which will be pursued to prevent his re-election. To displace a man of high merit, and who from his station may be supposed a man of extensive influence are considerations in the mind of any man who may fill the Presidential chair. The friends of those individuals and the public sympathy will be against him. If this should not produce his impeachment before the Senate, it will amount to an impeachment before the community, who will have the power of punishment, by refusing to re-elect him. But suppose this persecuted individual cannot obtain revenge in this mode; there are other modes in which he could make the situation of the President very inconvenient, if you suppose him resolutely bent on executing the dictates of resentment. If he had not influence enough to direct the vengeance of the whole community, he may probably be able to obtain an appointment in one or the other branch of the Legislature; and being a man of weight, talents, and influence, in either case he may prove to the President troublesome indeed. We have seen examples in the history of other nations, which justify the remark I now have made. Though the prerogatives of the British King are great as his rank, and it is unquestionably known that he has a positive influence over both branches of the legislative body, yet there have been examples in which the appointment and removal of ministers have been found to be dictated by one or other of those branches. Now if this be the case with an hereditary Monarch, possessed of those high prerogatives and furnished with so many means of influence; can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the Legislature, little, if at all, distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer? Such abuse of power exceeds my conception. If any thing takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle. But let us not consider the question on one side only; there are dangers to be contemplated on the other. Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the Executive department, which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people, who will possess, besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition; that the power should be vested in the Senate, on the principle that the power to displace is necessarily connected with the power to appoint. It is declared by the Constitution, that we may by law vest the appointment of inferior officers in the heads of departments; the power of removal being incidental, as stated by some gentlemen. Where does this terminate? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on—whom? On the Senate, a permanent body; a body, by its particular mode of election, in reality existing forever; a body possessing that proportion of aristocratic power which the Constitution no doubt thought wise to be established in the system, but which some have strongly excepted against. And let me ask gentlemen, is there equal security in this case as in the other? Shall we trust the Senate, responsible to individual Legislatures, rather than the person who is responsible to the whole community? It is true, the Senate do not hold their offices for life, like aristocracies recorded in the historic page; yet the fact is, they will not possess that responsibility for the exercise of Executive powers which would render it safe for us to vest such powers in them. But what an aspect will this give to the Executive. Instead of keeping the departments of Government distinct, you make an Executive out of one branch of the Legislature; you make the Executive a two-headed monster, to use the expression of the gentleman from New Hampshire, (Mr. Livermore,) you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which a unity in the Executive was instituted. These objections do not lie against such an arrangement as the bill establishes. I conceive that the President is sufficiently accountable to the community; and if this power is vested in him, it will be vested where its nature requires it should be vested; if anything in its nature is executive, it must be that power which is employed in superintending and seeing that the laws are faithfully executed. The laws cannot be executed but by officers appointed for that purpose; therefore, those who are over such officers naturally possess the Executive power. If any other doctrine be admitted, what is the consequence? You may set the Senate at the head of the Executive department, or you may require that the officers hold their places during the pleasure of this branch of the Legislature, if you cannot go so far as to say we shall appoint them; and by this means, you link together two branches of the Government which the preservation of liberty requires to be constantly separated.

Another species of argument has been urged against this clause. It is said, that it is improper, or at least unnecessary, to come to any decision on this subject. It has been said by one gentleman, that it would be officious in this branch of the Legislature to expound the Constitution, so far as it relates to the division of power between the President and Senate; it is incontrovertibly of as much importance to this branch of the Government as to any other, that the Constitution should be preserved entire. It is our duty, so far as it depends upon us, to take care that the powers of the Constitution be preserved entire to every department of Government; the breach of the Constitution in one point, will facilitate the breach in another; a breach in this point may destroy that equilibrium by which the House retains its consequence and share of power; therefore we are not chargeable with an officious interference. Besides, the bill, before it can have effect, must be submitted to both those branches who are particularly interested in it; the Senate may negative, or the President may object, if he thinks it unconstitutional.

But the great objection drawn from the source to which the last arguments would lead us is, that the Legislature itself has no right to expound the Constitution; that wherever its meaning is doubtful, you must leave it to take its course, until the Judiciary is called upon to declare its meaning. I acknowledge, in the ordinary course of Government, that the exposition of the laws and Constitution devolves upon the Judiciary. But I beg to know, upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments? The Constitution is the charter of the people to the Government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the Constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

Perhaps this is an omitted case. There is not one Government on the face of the earth, so far as I recollect, there is not one in the United States, in which provision is made for a particular authority to determine the limits of the Constitutional division of power between the branches of the Government. In all systems there are points which must be adjusted by the departments themselves, to which no one of them is competent. If it cannot be determined in this way, there is no resource left but the will of the community, to be collected in some mode to be provided by the Constitution, or one dictated by the necessity of the case. It is therefore a fair question, whether this great point may not as well be decided, at least by the whole Legislature as by a part, by us as well as by the Executive or Judiciary? As I think it will be equally Constitutional, I cannot imagine it will be less safe, that the exposition should issue from the Legislative authority than any other; and the more so, because it involves in the decision the opinions of both those departments, whose powers are supposed to be affected by it. Besides, I do not see in what way this question could come before the judges, to obtain a fair and solemn decision; but even if it were the case that it could, I should suppose, at least while the Government is not led by passion, disturbed by faction, or deceived by any discolored medium of sight, but while there is a desire in all to see and be guided by the benignant ray of truth, that the decision may be made with the most advantage by the Legislature itself.

My conclusion from these reflections is, that it will be Constitutional to retain the clause; that it expresses the meaning of the Constitution as must be established by fair construction, and a construction which, upon the whole, not only consists with liberty, but is more favorable to it than any one of the interpretations that have been proposed.1

JUNE 18. POWER OF REMOVAL FROM OFFICE.

The question now seems to be brought to this, whether it is proper or improper to retain these words in the clause, provided they are explanatory of the Constitution. I think this branch of the Legislature is as much interested in the establishment of the true meaning of the Constitution, as either the President or Senate; and when the Constitution submits it to us to establish offices by law, we ought to know by what tenure the office should be held; and whether it should depend upon the concurrence of the Senate with the President, or upon the will of the President alone; because gentlemen may hesitate in either case, whether they will make it for an indefinite or precise time. If the officer can be removed at discretion by the President, there may be safety in letting it be for an indefinite period. If he cannot exert his prerogative, there is no security even by the mode of impeachment; because the officer may intrench himself behind the authority of the Senate, and bid defiance to every other department of Government. In this case, the question of duration would take a different turn. Hence it is highly proper that we and our constituents should know the tenure of the office. And have we not as good a right as any branch of the Government to declare our sense of the meaning of the Constitution?

Nothing has yet been offered to invalidate the doctrine, that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority. When the question emerges as it does in this bill, and much seems to depend upon it, I should conceive it highly proper to make a legislative construction. In another point of view it is proper that this interpretation should now take place, rather than at a time when the exigency of the case may require the exercise of the power of removal. At present, the disposition of every gentleman is to seek the truth, and abide by its guidance when it is discovered. I have reason to believe the same disposition prevails in the Senate. But will this be the case when some individual officer of high rank draws into question the capacity of the President, with the Senate, to effect his removal? If we leave the Constitution to take this course, it can never be expounded until the President shall think it expedient to exercise the right of removal, if he supposes he has it; then the Senate may be induced to set up their pretensions. And will they decide so calmly as at this time, when no important officer in any of the great departments is appointed to influence their judgments? The imagination of no member here, or of the Senate, or of the President himself, is heated or disturbed by faction. If ever a proper moment for decision should offer, it must be one like the present.

I do not conceive that this question has been truly stated by some gentlemen. In my opinion it is not whether we shall take the power from one branch of the Government and give it to another; but the question is, to which branch has the Constitution given it? Some gentlemen have said, that it resides in the people at large; and that if it is necessary to the Government, we must apply to the people for it, and obtain it by way of amendment to the Constitution. Some gentlemen contend, that although it is given in the Constitution, as a necessary power to carry into execution the other powers vested by the Constitution, yet it is vested in the Legislature. I cannot admit this doctrine either; because it is setting the Legislature at the head of the Executive branch of the Government. If we take the other construction of the gentleman from South Carolina, that all officers hold their places by the firm tenure of good behaviour, we shall find it still more improper. I think gentlemen will see, upon reflection, that this doctrine is incompatible with the principles of free Government. If there is no removability but by way of impeachment, then all the Executive officers of Government hold their offices by the firm tenure of good behaviour, from the Chief Justice down to the tide waiter.

[Mr. Smith interrupted Mr. M., and said that he had admitted that inferior officers might be removed, because the Constitution had left it in the power of the Legislature to establish them on what terms they pleased; consequently, to direct their appointment and removal.]

Mr. Madison had understood the gentleman as he now explained himself. But still he contended, that the consequences he had drawn would necessarily follow; because there was no express authority given to the Legislature in the Constitution to enable the President, the courts of law, or heads of the departments, to remove an inferior officer; all that was said on that head was confined solely to the power of appointing them. If the gentleman admits that the Legislature may vest the power of removal, with respect to inferior officers, he must also admit that the Constitution vests the President with the power of removal in the case of superior officers; because both powers are implied in the same words. The President may appoint the one class, and the Legislature may authorize the courts of law or heads of departments to appoint in the other case. If then it is admitted that the power of removal vests in the President, or President and Senate, the arguments which I urged yesterday, and those which have been urged by honorable gentlemen on this side of the question for these three days past, will fully evince the truth of the construction which we give, that the power is in the President alone. I will not repeat them, because they must have full possession of every gentleman’s mind. I am willing, therefore, to rest the decision here; and hope that it will be made in such a manner as to perpetuate the blessings which this Constitution was intended to embrace.1

JUNE 22. POWER OF REMOVAL FROM OFFICE.

I am in favor of the motion for striking out, but not upon the principles of my worthy colleague.1 I will briefly state my reasons for voting in the manner I intend. First, altering the mode of expression tends to give satisfaction to those gentlemen who think it not an object of legislative discretion; and second, because the amendment already agreed to fully contains the sense of this House upon the doctrine of the Constitution; and therefore the words are unnecessary as they stand here. I will not trouble the House with repeating reasons why the change of expression is best, as they are well understood. But gentlemen cannot fairly urge against us a change of ground, because the point we contended for is fully obtained by the amendment. It was truly said by the gentleman from New York, (Mr. Benson,) that these words carry with them an implication that the Legislature has the power of granting the power of removal.

It is needless to assign my reasons why I think the Legislature not in possession of this power; they were fully explained before. I therefore shall only say, if there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the Legislative, Executive, and Judicial powers. If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices. The powers relative to offices are partly Legislative and partly Executive. The Legislature creates the office, defines the powers, limits its duration, and annexes a compensation. This done, the Legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an Executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the Legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the Legislative and Executive authorities in this respect; and hence it is that the Constitution stipulates for the independence of each branch of the Government.

Let it be understood that the Legislature is to have some influence both in appointing and removing officers, and I venture to say the people of America will justly fear a system of sinecures. What security have they that offices will not be created to accommodate favorites or pensioners subservient to their designs? I never did conceive, that so far as the Constitution gave one branch of the Legislature an agency in this business, it was, by any means, one of its most meritorious parts; but so far as it has gone, I confess I would be as unwilling to abridge the power of that body as to enlarge it. But considering, as I do, that the Constitution fairly vests the President with the power, and that the amendment declares this to be the sense of the House, I shall concur with the gentlemen in opposition so far as to strike out these words, which I now look upon to be useless.

I have a great respect for the abilities and judgment of my worthy colleague, (Mr. Page,) and am convinced he is inspired by the purest motives in his opposition to what he conceives to be an improper measure; but I hope he will not think so strange of our difference, if he considers the small proportion of the House which concurs with him with respect to impeachment being the only way of removing officers. I believe the opinion is held but by one gentleman besides himself. If this sentiment were to obtain, it would give rise to more objections to the Constitution than gentlemen are aware of; more than any other construction whatever. Yet while he professes to be greatly alarmed on one account, he possesses a stoic apathy with respect to the other.

JUNE 29. DUTIES OF THE COMPTROLLER.

Mr. Madison observed, that the committee had gone through the bill without making any provision respecting the tenure by which the Comptroller is to hold his office. He thought it was a point worthy of consideration, and would, therefore, submit a few observations upon it.

It will be necessary, said he, to consider the nature of this office, to enable us to come to a right decision on the subject; in analyzing its properties, we shall easily discover they are not purely of an Executive nature. It seems to me that they partake of a Judiciary quality as well as Executive; perhaps the latter obtains in the greatest degree. The principal duty seems to be deciding upon the lawfulness and justice of the claims and accounts subsisting between the United States and particular citizens: this partakes strongly of the judicial character, and there may be strong reasons why an officer of this kind should not hold his office at the pleasure of the Executive branch of the Government. I am inclined to think that we ought to consider him something in the light of an arbitrator between the public and individuals, and that he ought to hold his office by such a tenure as will make him responsible to the public generally; then again it may be thought, on the other side, that some persons ought to be authorized on behalf of the individual, with the usual liberty of referring to a third person, in case of disagreement, which may throw some embarrassment in the way of the first idea.

Whatever, Mr. Chairman, may be my opinion with respect to the tenure by which an Executive officer may hold his office according to the meaning of the Constitution, I am very well satisfied, that a modification by the Legislature may take place in such as partake of the judicial qualities, and that the legislative power is sufficient to establish this office on such a footing as to answer the purposes for which it is prescribed.

With this view he would move a proposition, to be inserted in the bill; it was that the Comptroller should hold his office during — years, unless sooner removed by the President: he will always be dependent upon the Legislature, by reason of the power of impeachment, but he might be made still more so, when the House took up the Salary bill. He would have the person re-appointable at the expiration of the term, unless he was disqualified by a conviction on an impeachment before the Senate; by this means the Comptroller would be dependent upon the President, because he can be removed by him; he will be dependent upon the Senate, because they must consent to his election for every term of years; and he will be dependent upon this House, through the means of impeachment, and the power we shall reserve over his salary; by which means we shall effectually secure the dependence of this officer upon the Government. But making him thus thoroughly dependent, would make it necessary to secure his impartiality, with respect to the individual. This might be effected by giving any person, who conceived himself aggrieved, a right to petition the Supreme Court for redress, and they should be empowered to do right therein; this will enable the individual to carry his claim before an independent tribunal.

A provision of this kind exists in two of the United States at this time, and is found to answer a very good purpose. He mentioned this, that gentlemen might not think it altogether novel. The committee, he hoped, would take a little time to examine the idea.1

AUGUST 13. AMENDMENTS TO THE CONSTITUTION.

Mr. Madison did not think it was an improper time to proceed in this business; the House had already gone through with subjects of a less interesting nature; now if the Judiciary bill was of such vast importance, its consideration ought not to have been postponed for those purposes.

He would remind gentlemen that there were many who conceived amendments of some kind necessary and proper in themselves; while others who are not so well satisfied of the necessity and propriety, may think they are rendered expedient from some other consideration. Is it desirable to keep up a division among the people of the United States on a point in which they consider their most essential rights are concerned? If this is an object worthy the attention of such a numerous part of our constituents, why should we decline taking it into our consideration, and thereby promote that spirit of urbanity and unanimity which the Government itself stands in need of for its more full support?

Already has the subject been delayed much longer than could have been wished. If after having fixed a day for taking it into consideration, we should put it off again, a spirit of jealousy may be excited, and not allayed without great inconvenience.

Form, sir, is always of less importance than the substance; but on this occasion I admit that form is of some consequence, and it will be well for the House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case, the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed.1

SEPTEMBER 3. LOCATION OF THE CAPITAL.

Mr. Madison meant to pay due attention to every argument that could be urged on this important question. Facts had been asserted, the impressions of which he wished to be erased, if they were not well founded. It has been said, that the communication with the Western Territory, by the Susquehanna, is more convenient than by the Potomac. I apprehend this is not the case; and the propriety of our decision will depend, in a great measure, on the superior advantages of one of these two streams. It is agreed, on all hands, that we ought to have some regard to the convenience of the Atlantic navigation. Now, to embrace this object, a position must be taken on some navigable river; to favor the communication with the Western Territory, its arms ought likewise to extend themselves towards that region. I did not suppose it would have been necessary to bring forward charts and maps, as has been done by others, to show the committee the comparative situation of those rivers. I flattered myself it was sufficiently understood, to enable us to decide the question of superiority; but I am now inclined to believe, that gentlemen have embraced an error, and I hope they are not determined to vote under improper impressions. I venture to pledge myself for the demonstration, that the communication with the Western Territory, by the Potomac, is more certain and convenient than the other. And if the question is as important as it is admitted to be, gentlemen will not shut their ears to information; they will not precipitate the decision; or if they regard the satisfaction of our constituents, they will allow them to be informed of all the facts and arguments that lead to the decision of a question in which the general and particular interests of all parts of the Union are involved.1

SEPTEMBER 18. LOCATION OF THE CAPITAL.

Mr. Madison felt himself compelled to move for striking out that part of the bill which provided that the temporary residence of Congress should continue at New York; as he conceived it irreconcilable with the spirit of the Constitution. If it was not from viewing it in this light, he should have given the bill no further opposition; and now he did not mean to enter on the merits of the main question.

From the Constitution, it appeared that the concurrence of the two Houses of Congress was sufficient to enable them to adjourn from one place to another; nay, the legal consent of the President was, in some degree, prescribed in the 7th section of article 1st, where it is declared, that every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States, and approved by him, before the same shall take effect. Any attempt, therefore, to adjourn by law, is a violation of that part of the Constitution which gives the power, exclusively, to the two branches of the Legislature. If gentlemen saw it in the same light, he flattered himself they would reject that part of the bill; and, however little they valued the reflection that this city was not central, which had been so often urged, they would be guided by arguments springing from a superior source.

He would proceed to state the reasons which induced him to be of this opinion: it is declared in the Constitution, that neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any place than that in which the two Houses shall be sitting; from hence he inferred, that the two Houses, by a concurrence, could adjourn for more than three days, and to any other place which they thought proper; by the other clause he had mentioned, the Executive power is restrained from any interference with the Legislative on this subject; hence, he concluded, it would be dangerous to attempt to give to the President a power which the Constitution expressly denied him. He did not suppose that the attempt to vest the Executive with a power over the adjournment of the Legislature would absolutely convey the power, but he conceived it wrong to make the experiment. He submitted it to those gentlemen who were attached to the success of the bill, how far an unconstitutional declaration may impede its passage through the other branch of the Legislature.

It has been supposed by some, that the seat of Government may be at a place different from that where the Congress sits; and, although the former may be established by law, the Legislature might remove elsewhere; he could not subscribe to this doctrine. What is the Government of the United States for which a seat is to be provided? Will not the Government necessarily comprehend the Congress as a part? In arbitrary Governments, the residence of the monarch may be styled the seat of Government, because he is within himself the supreme Legislative, Executive, and Judicial power; the same may be said of the residence of a limited monarchy, where the efficiency of the Executive operates, in a great degree, to the exclusion of the Legislative authority; but in such a Government as ours, according to the legal and common acceptation of the term, Government must include the Legislative power; so the term Administration, which in other countries is specially appropriated to the Executive branch of Government, is used here for both the Executive and Legislative branches; we, in official communications, say Legislative Administration or Executive Administration, according as the one or the other is employed in the exercise of its Constitutional powers. He mentioned these circumstances to show that they ought not to look for the meaning of terms used in the laws and Constitution of the United States, into the acceptation of them in other countries, whose situation and Government were different from that of United America. If his reasoning was just, he should conclude that the seat of Government would be at that place where both the Executive and Legislative bodies are fixed; and this depended upon the vote of the two branches of the Legislature. There was another clause favorable to this opinion; it was, that giving Congress authority to exercise exclusive legislation in all cases whatsoever over such district as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States; this was the only place where any thing respecting the seat of Government was mentioned; and would any gentleman contend that Congress might have a seat of Government over which they are empowered to exercise exclusive legislation, and yet reside at the distance of two or 300 miles from it? Such a construction would contradict the plain and evident meaning of the Constitution, and as such was inadmissible.

He hoped these observations would be attended to; and did not doubt but if seen in their true light they would induce the House to reject that part of the bill which he moved to have struck out.1

SEPTEMBER 28. LOCATION OF THE CAPITAL.

Mr. Madison contended that the amendment proposed by the Senate was a departure from every principle adopted by the House; but he would not trouble them with a recapitulation of arguments, which he feared would be unavailing; he wished, however, that the House would provide against one inconvenience, which was, to prevent the district in Pennsylvania, chosen by Congress, from being deprived for a time of the benefit of the laws. This, he apprehended, would be the case, unless Congress made provision for the operation of the laws of Pennsylvania, in the act by which they accepted of the cession of that State; for the State relinquished the right of legislation from the moment that Congress accepted of the district. The propriety of this proposition was so apparent, that he had not a doubt but the House would consent to it. He then moved the following proviso: “And provided, that nothing herein contained shall be construed to affect the operation of the laws of Pennsylvania, within the district ceded and accepted, until Congress shall otherwise provide by law.”1

TO GEORGE WASHINGTON.wash. mss.

Orange, Nov^r 20, 1789.

Dear Sir,—

It was my purpose to have dropped you a few lines from Philad^a, but I was too much indisposed during my detention there to avail myself of that pleasure. Since my arrival here I have till now been without a fit conveyance to the post office.

You will recollect the contents of a letter shewn you from Mr. Innes to Mr. Brown. Whilst I was in Philad^a. I was informed by the latter, who was detained there, as well as myself by indisposition that he had rec^d later accounts though not from the same correspondent, that the Spaniards have finally put an entire stop to the trade of our Citizens down the river. The encouragements to such as settle under their own Government are continued.

A day or two after I got to Philad^a I fell in with Mr. Morris. He broke the subject of the residence of Cong^s, and made observations which betrayed his dislike of the upshot of the business at N. York, and his desire to keep alive the Southern project of an arrangement with Pennsylvania. I reminded him of the conduct of his State, and intimated that the question would probably sleep for some time in consequence of it. His answer implied that Congress must not continue at New York, and that if he should be freed from his Engagements with the E. States by their refusal to take up the bill and pass it as it went to the Senate, he should renounce all confidence in that quarter, and speak seriously to the S. States. I told him they must be spoken to very seriously, after what had passed, if Penn^a expected them to listen to her, that indeed there was probably an end to further intercourse on the subject. He signified that if he should speak it would be in earnest, and he believed that no one would pretend that his conduct would justify the least distrust of his going through with his undertakings; adding however that he was determined & accordingly gave me as he had given others notice that he should call up the postponed bill as soon as Cong^s should be reassembled. I observed to him that if it were desirable to have the matter revived we could not wish to have in it a form more likely to defeat itself. It was unparliamentary and highly inconvenient; and would therefore be opposed by all candid friends to his object as an improper precedent, as well as by those who were opposed to the object itself. And if he should succeed in the Senate, the irregularity of the proceeding would justify the other House in withholding the signature of its Speaker, so that the bill could never go up to the President. He acknowledged that the bill could not be got thro’ unless it had a majority of both Houses on its merits. Why then, I asked, not take it up anew? He said he meant to bring the gentlemen who had postponed the bill to the point, acknowledged that he distrusted them, but held his engagements binding on him, until this final experiment should be made on the respect they meant to pay to theirs. I do not think it difficult to augur from this conversation the views which will govern Penn^a at the next Session. Conversations held by Grayson both with Morris & others, in Philad^a, and left by him in a letter to me, coincide with what I have stated. An attempt will first be made to alarm N. York and the Eastern States into the plan postponed, by holding out the Potowmac & Philad^a as the alternative, and if the attempt should not succeed, the alternative will then be held out to the Southern members. On the other hand N. Y. & the E. States will enforce the policy of delay, by threatening the S. States as heretofore, with German Town or Trenton or at least Susquehannah, and will no doubt carry the threat into execution if they can, rather yⁿ suffer an arrangement to take place between Pen^a. & the S. States.

I hear nothing certain from the Assembly. It is said that an attempt of Mr. H. to revive the project of commutables has been defeated, that the amendments have been taken up, and are likely to be put off to the next Session, the present house having been elected prior to the promulgation of them. This reason would have more force, if the amendments did not so much correspond as far as they go with the propositions of the State Convention, which were before the public long before the last Election. At any rate, the Assembly might pass a vote of approbation, along with the postponement, and assign the reason for referring the ratification to their successors. It is probable that the scruple has arisen with the disaffected party. If it be construed by the public into a latent hope of some contingent opportunity for promoting the war ag^st the Gen^l Government, I am of opinion the experiment will recoil on the authors of it. As far as I can gather, the great bulk of the late opponents are entirely at rest, and more likely to censure a further opposition to the Gov^t, as now administered than the Government itself. One of the principal leaders of the Baptists lately sent me word that the amendments had entirely satisfied the disaffected of his Sect, and that it would appear in their subsequent conduct.

I ought not to conclude without some apology for so slovenly a letter. I put off writing it till an opportunity should present itself not knowing but something from time to time might turn up that would make it less unworthy of your perusal. And it has so happened that the opp^y barely gives me time for this hasty scrawl.

With the most perfect esteem & Affect attachment I remain Dear Sir Y^r. Mo^s Obed^t. Serv^t

TO GEORGE WASHINGTON.wash. mss.

Orange, Dec^r 5, 1789.

Dear Sir,—

Since my last I have been furnished with the inclosed copy of the letter from the Senators of this State to its Legislature.1 It is well calculated to keep alive the disaffection to the Government, and is accordingly applied to that use by violent partizans. I understand the letter was written by the first subscriber of it, as indeed is pretty evident from the style and strain of it. The other it is said, subscribed it with reluctance. I am less surprised that this should have been the case than that he should have subscribed it at all.

My last information from Richmond is contained in the following extract from a letter of the 28th of Nov^r., from an intelligent member of the H. of Delegates. “The revenue bill which proposes a reduction of the public taxes one fourth below the last year’s amount is with the Senate. Whilst this business was before the H. of Delegates a proposition was made to receive Tobacco & Hemp as commutables, which was negatived, the House determining still to confine the collection to specie and to specie warrants. Two or three petitions have been presented which asked a general suspension of Executions for twelve months; they were read, but denied a reference. The Assembly have passed an Act for altering the time for choosing Representatives to Congress, which is now fixed to be on the third Monday in September, suspending the powers of the Representative until the Feb^y. after his election. This change was made to suit the time of the annual meeting of Congress. The fate of the Amendments proposed by Congress to the Gen^l Government is still in suspense. In a Com^e of the whole House the first ten were acceded to with little opposition; for on a question taken on each separately, there was scarcely a dissenting voice. On the two last a debate of some length took place, which ended in rejection. Mr. E. Randolph who advocated all the others stood on this contest in the front of opposition. His principal objection was pointed ag^st the word ‘retained,’ in the eleventh proposed amendment, and his argument if I understood it was applied in this manner—that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of, and that as there was no criterion by which it could be determined whether any other particular right was retained or not, it would be more safe and more consistent with the spirit of the 1st & 17th amend^ts proposed by Virginia that this reservation ag^st constructive power, should operate rather as a provision ag^st extending the powers of Cong^s by their own authority, than a protection to rights reducible to no definite certainty. But others, among whom I am one, see not the force of this distinction, for by preventing an extension of power in that body from which danger is apprehended, safety will be insured, if its powers be not too extensive already, & so by protecting the rights of the people & of the States, an improper extension of power will be prevented & safety made equally certain. If the House should agree to the Resolution for rejecting the two last, I am of opinion it will bring the whole into hazard again, as some who have been decided friends to the ten first think it would be unwise to adopt them without the 11 & 12th. Whatever may be the fate of the amendments submitted by Congress, it is probable that an application for further amendments will be made by this Assembly, for the opposition to the federal Constitution is in my opinion reduced to a single point, the power of direct taxation—those who wish the change are desirous of repeating the application, whilst those [who] wish it not are indifferent on the subject, supposing that Cong^s. will not propose a change which would take from them a power so necessary for the accomplishment of those objects which are confided to their care. Mess^rs Joseph Jones & Spencer Roane are appointed Judges of the Gen^l. Court, to fill the vacancies occasioned by the death of Mr. Carey & the removal of Mr. Mercer to the Court of appeals.”

The difficulty started ag^st the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution. It is a still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful. If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended. If no such line can be drawn, a declaration in either form would amount to nothing. If the distinction were just it does not seem to be of sufficient importance to justify the risk of losing the amend^ts., of furnishing a handle to the disaffected, and of arming N. C. with a pretext, if she be disposed to prolong her exile from the Union.

With every sentiment of respect & attachment I am D^r Sir Yr Obed^t & hble Serv^t.

MEMORANDUM. DECEMBER, 1789.1mad. mss.

On the supposition that the business can be more properly conducted by a private agent at London, than a public minister at a third Court, the letter and instructions for the former character appear to be well adapted to the purpose. If any remark were to be made, it would relate merely to the form, which it is conceived would be made rather better by transposing the order of the two main subjects. The fulfilment of the Treaty already made seems to be primary to the inquiries requisite to a subsequent Treaty.

The reasoning assigned to those who opposed a commercial discrimination, states the views of a part only of that side of the question. A considerable number, both in the Senate & H. of Rep^s. objected to the measure as defective in energy, rather than as wrong in its principle. In the former, a Committee was appointed, who reported a more energetic plan, and in the latter, leave to bring in a bill, was given to a member who explained his views to be similar. Both of these instances were posterior to the miscarriage of the discrimination first proposed.

As M^r Jefferson may be daily expected, as it is possible he may bring informations throwing light on the subject under deliberation, and as it is probable use may be made of his own ideas with regard to it, a quere suggests itself, whether the advantage of consulting with him might not justify such a delay, unless there be special reasons for expedition.

[1 ]

Stephens	Cabel
109	71	Albemarle.
	270	Amherst.
15	66	Fluvanna.
268	10	Spotsylv^a.
113	4	Orange.
177	26	Culpeper.
4	157	Buckingham.
686	604
	82	bal in favor of Stevens.

The unanimity in Amherst was produced by a previous declaration, as I am told, of Col. Cabel on the subject of the Presidt, which satisfied the federal party. Little attention seems to have been paid anywhere to the vice president. Among the bulk of the people, the choice of the President has been regarded as the sole subject of the election.—Madison’s note.

[1]

TO GEORGE EVE.

January 2d, 1789

Sir,

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.

I freely own that I have never seen in the Constitution as it now stands those serious dangers which have alarmed many respectable Citizens. Accordingly whilst it remained unratified, and it was necessary to unite the States in some one plan, I opposed all previous alterations as calculated to throw the States into dangerous contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution. Circumstances are now changed. The Constitution is established on the ratifications of eleven States and a very great majority of the people of America; and amendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c. I think it will be proper also to provide expressly in the Constitution, for the periodical increase of the number of Representatives until the amount shall be entirely satisfactory, and to put the judiciary department into such a form as will render vexatious appeals impossible. There are sundry other alterations which are either eligible in themselves, or being at least safe, are recommended by the respect due to such as wish for them.

I have intimated that the amendments ought to be proposed by the first Congress. I prefer this mode to that of a General Convention—1st. because it is the most expeditious mode. A Convention must be delayed until ⅔ of the State Legislatures shall have applied for one, and afterwards the amendments must be submitted to the States; whereas if the business be undertaken by Congress the amendments may be prepared and submitted in March next. 2dly. because it is the most certain mode. There are not a few States who will absolutely reject the proposal of a Convention, and yet not be averse to amendments in the other mode.—lastly, it is the safest mode. The Congress who will be appointed to execute as well as to amend the Government, will probably be careful not to destroy or endanger it. A Convention, on the other hand, meeting in the present ferment of parties, and containing perhaps insidious characters from different parts of America, would at least spread a general alarm, and be but too likely to turn everything into confusion and uncertainty. It is to be observed however that the question concerning a General Convention, will not belong to the federal Legislature. If ⅔ of the States apply for one, Congress cannot refuse to call it; if not, the other mode of amendments must be pursued.—Mad. MSS.

[1 ]So endorsed by Madison, the words “at whose request drawn up” being in his penmanship when an old man. The report is a copy, as are all the Lee letters.

[1 ]February 16, 1789, Mt. Vernon, Washington wrote to Madison, congratulating him on his election to Congress, and saying he expected him at Mt. Vernon on his way to New York.

[1 ]George Morgan.

[1]

(Put into the hands of confidential people in Penna & N. Jersey for the purpose of procuring followers.)

Several Gentlemen who propose to make settlements in the Western Country mean to reconnoitre & survey the same the ensuing winter. All farmers, Tradesmen &c of good characters, who wish to unite in this scheme & to visit the Country under my direction, shall be provided with boats & provisions for the purpose, free of expence, on signing an agreement which may be seen by applying to me at Prospect near Princeton on or before the 8th day of Ocr next, or at Fort pitt by the 10th day of Novr next. The boats which will be employed on this expedition are proposed to be from 40 to 60 feet long, to row with 20 oars each, & to carry a number of Swivels. Each man to provide himself with a good firelock or rifle, ammunition & one blanket or more if he pleases. Such as choose tents or other conveniences must provide them themselves. Every person who accompanies me on this undertaking shall be entitled to 320 Acres of land, at ⅛ of a dollar per acre. Those who first engage to have the preference of surveys, wch, however each person may make on such part of the whole tract as he pleases, taking none but his choice of the best lands; provided each survey is either square or oblong whose sides are East, West, North & South; 640 Acres or more being first reserved for a Town which I propose to divide into lots of one acre each & give 600 of them in fee to such Merchants, tradesmen &c, as may apply on the spot, & 40 of them to such public uses as the Inhabitants shall from time to time recommend; together with one out lot of ten acres to each of the first 600 families who shall build & settle in the Town. All persons who settle with me at New Madrid, & their posterity will have the free navigation of the Mississippi & a Market at New Orleans free from duties for all the produce from their lands, where they may receive payment in Mexican Dollars for their flour, tobacco &c.

It is proposed after fixing on the spot to clear & fence in 100 acres in a convenient situation, to plant it with Corn, to hire suitable hands to tend it thro’ the summer, & in the next fall winter & spring, to distribute it to New Settlers at ⅛ of a dollar per Bushel, that they may have a dependence so far as this will go. And as Buffaloes & other Game are very plenty in the Neighborhood, there can be no want of provision, contractors being ready to engage to deliver fresh beef & venison throughout the year at 1 Penny Per . Credit will be given to those who desire it, as well for the land as for the provisions, & payment recd in future Produce. All persons will be assisted in building a house, clearing a spot of ground, & in getting in their first crops. Horned Cattle, horses & swine will be delivered to the settlers at New Madrid in such quantities as they shall stand in need of at first at very reasonable rates for cash or future produce. Those who settle at New Madrid in this or the ensuing year shall have Plough Irons, or other Iron works, & farming utensils transported down the ohio gratis; also their cloathing, bedding, Kitchen furniture & certain other articles which may not be too bulky.

School Masters will be engaged immediately for the instruction of Youth. Ministers of the Gospel will meet with encouragement & grants of land made in fee to each of every denomination who may agree with a Congregation before the year 1790, besides particular grants of tracts of land to each Society.

This new City is proposed to be built on a high bank of the Mississippi River, near the mouth of the Ohio, in the richest & most healthy part of the Western Country, about the latitude of 37°.

Those who wish for further information will be pleased to apply to me in person as above mentioned, or at the New City of Madrid after the first day of next December, where the Surveyors will attend to lay out the lands.

(Copy)

(Signed,) George Morgan.

—Mad. MSS.October 3d, 1788.

[1 ]From the Annals of Congress, 1st Cong., vol. i.

[1 ]April 12, Madison wrote to Randolph

“On the subject of amendments nothing has been publickly, and very little privately said. Such as I am known to have espoused will as far as I can gather, be attainable from the federalists, who sufficiently predominate in both branches, though with some, the concurrence will proceed from a spirit of conciliation rather than conviction. Connecticut is least inclined though I presume not inflexibly opposed, to a moderate revision. A paper wch will probably be republished in the Virga. Gazettes, under the signature of a Citizen of New Haven, unfolds Mr. Sherman’s opinions. Whatever the amendments may be it is clear that they will be attempted in no other way than through Congress. Many of the warmest of the opponents of the Govt disavow the mode contended for by Virga

“I wish I could see an equal prospect of appeasing the disquietude on the two other points you mention—British debts and taxes. With respect to the first, you know my sentiments. It will be the duty of the Senate in my opinion to promote regulations with G. B. as speedily as circumstances will admit, and the aspect of the Governt seems likely to command a respectful attention to its measures. I see nothing else that can be done. As to the taxes I see nothing that can be done, more than the ordinary maxims of policy suggest. They may certainly be diminished in consequence of the revolution in the federal Gov [torn out], since the public wants will be little if at all increased, [torn out] be supplied in greater proportion out of commerce.”—Mad. MSS.

[1 ]Madison wrote to Jefferson, May 9:

“The distinction between nations in & not in Treaty has given birth to three distinct & urgent debates. On the last the minority was very small for putting G. B. at once on the same footing with the most favored nation. This policy, tho, patronized by some respectable names is chiefly abetted by the spirit of this City, which is steeped in Anglicism. It is not improbable from the urgency of its representative, that a further effort may be yet made.

“Inclosed is the Speech of the President with the Address of the House of Reps. & his reply. You will see in the caption of the address that we have pruned the ordinary stile of the degrading appendages of Excellency, Esqr., &c, and restored it to its naked dignity. Titles to both the President & vice President were formally & unanimously condemned by a vote of the H. of Reps. This I hope will shew to the friends of Republicanism that our new Government was not meant to substitute either Monarchy or Aristocracy, and that the genius of the people is as yet adverse to both.”—Mad. MSS.

The formal reply by the House to the President’s speech was written by Madison and adopted May 5.

[1 ]The Bill was passed by the House May 16.

[1 ]Madison wrote Pendleton May 17:

“Dear Sir,—

“The progress of our revenue system continues to be slow. The bill rating the duties is still with the Senate. It is said that many alterations will be proposed, consisting of reductions chiefly. It is said also that the proposition for putting G. B. on the same footing with our Allies in all respects, prior to a treaty with her, will have a majority in that House, and will undergo another agitation in the House of Reps It had before three trials in the latter, but it lost ground in each, and finally was in a minority of 9 or 10 agst near 40. I think it an impolitic idea as it relates to our foreign interest, and not less so perhaps as it relates to the popular sentimer of America, particularly of Virga and still more particularly of that part of it which is already most dissatisfied with the new Government.”—Mad. MSS.

[2 ]The Debate was on the creation of a Department of Foreign Affairs. Smith, of South Carolina, said the head of the Department could only be removed by impeachment before the Senate, and that, “being once in office, he must remain there until convicted on impeachment.”—Annals of Congress, i., 372.

[1 ]Dr. David Ramsay, the historian, of South Carolina. See his petition in Annals of Congress, i., 403. He wrote to Madison, Charleston, April 4, 1789. “One of the elected federal representatives of this State is, in my opinion, inelegible. The case is in short thus: the gentleman alluded to left Carolina in the year 1770 his parents died about the same time and he was absent from America during the whole of the war till November 1783. As in the time of his absence the revolution took place I contend that in order to his becoming a Citizen of the United States some thing must have been done previously on his part to shew his acquiescence in the new Government established without his consent.”—Mad. MSS.

[1]

TO THOMAS JEFFERSON.

New York, May 23, 1789.

Dear Sir,—

. . . . . . . . . . .My last inclosed copies of the President’s inaugural Speech and the answer of the House of Representatives. I now add the answer of the Senate. It will not have escaped you that the former was addressed with a truly republican simplicity to G. W., Presidt of the U. S. The latter follows the example, with the omission of the personal name, but without any other than the Constitutional title. The proceeding on this point was in the House of Reps, spontaneous. The imitation by the Senate was extorted.1 The question became a serious one between the two Houses, J. Adams espoused the cause of titles with great earnestness. His friend, R. H. Lee, altho elected as a Republican enemy to an aristocratic Constitution, was a most zealous second. The projected title was, His Highness the Presidt of the U. S. and protector of their liberties. Had the project succeeded, it would have subjected the Presidt to a severe dilemma, and given a deep wound to our infant Government.

It is with much pleasure I inform you that Moustier begins to make himself acceptable; and with still more, that Madame Brehan begins to be viewed in the light which I hope she merits, and which was so little the case when I wrote by Master Morris.2 . . .—Mad MSS

TO THOMAS JEFFERSON.

New York, May 27th, 1789.

Dear Sir,

. . . . . . . . . . .

It it already agreed in the form of resolutions that there shall be three departments one for finance, another for foreign affairs, and the third for war. The last will be continued in the hands of General Knox The second will remain with Mr. Jay, if he chooses to keep it. The first is also to be under one head, though to be branched out in such a manner as will check the administration. Chancellor Livingston wishes this department,1 but will not succeed. It will be given I think to Jay or Hamilton. The latter is perhaps best qualified for that species of business and on that account would be preferred by those who know him personally. The former is more known by character throughout the U. S.

I have been asked whether any appointment at home would be agreeable to you. Being unacquainted with your mind I have not ventured on an answer

The Bill of rates which passed the House of Representatives a few days ago is not yet come down from the Senate. The duties will it is said be pretty much reduced. In a few instances perhaps the reductions may not be improper. If they are not generally left as high as will admit of collection, the dilemma will be unavoidable, of either maintaining our Public credit in its birth, or resorting to other kinds of taxation for which our constituents are not yet prepared. The Senate is also abolishing1the discriminations in favor of nations in treaty, whereby Britain will be quieted in the enjoyment of our trade as she may please to regulate it and France discouraged from her efforts at a competition which it is not less our interest than hers to promote. The question was agitated repeatedly in the house of representatives and decided at last almost unanimously in favor of some monitory proof that our government is able and not afraid to encounter the restrictions of Britain. Both the senators from Virginia particularly Lee go with the majority of the Senate. In this I suspect the temper of the party which sent them is as little consulted as is the conduct of Lee in the affair of titles and his opinion in relation to the western country.

I have already informed you that madam Brehan is every day recovering from the disesteem & neglect into which reports had thrown her, and that Moustier is also become more and more acceptable or at least less and less otherwise. His commercial ideas are probably neither illiberal nor unfriendly to this country. The contrary has been supposed. When the truth is ascertained & known, unfavorable impressions will be still more removed.

The subject of amendments was to have been introduced on monday last, but is postponed in order that more urgent business may not be delayed. On monday seven-night it will certainly come forward. A Bill of rights, incorporated perhaps into the Constitution will be proposed, with a few other alterations most called for by the opponents of the Government and least objectionable to its friends

As soon as Mr. Brown arrives who is the Representative of Kentucky, the admission of that district to the character of a State and a member of the Union, will claim attention. I foresee no difficulty, unless local jealousy should couple the pretensions of Vermont with those of Kentucky; and even then no other delay than what may be necessary to open the way for the former, through the forms and perhaps the objections of this State, N. York which must not be altogether disregarded.

The proceedings of the new Congress are so far marked with great moderation and liberality; and will disappoint the wishes and predictions of many who have opposed the Government. The spirit which characterizes the House of Reps, in particular is already extinguishing the honest fears which considered the system as dangerous to republicanism. For myself I am persuaded that the bias of the federal is on the same side with that of the State Gots tho’ in a much less degree.—Mad. MSS.

TO EDMUND RANDOLPH.

N. York May 31, 1789.

My dear friend:

. . . . . . . . . . .

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 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 merchantile, 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

Among the subjects on the anvil is the arrangements of the subordinate Executive departments. A Unity in each has been resolved on, and an amenability to the President alone, as well as to the Senate by way of impeachment. Perhaps it would not be very consistent with the Constitution to require the concurrence of the Senate in removals. The Executive power seems to be vested in the President alone, except so far as it is qualified by an express association of the Senate in appointments: in like manner as the Legislative is vested in Congress, under the exception in favour of the President’s qualified negative. Independently of this consideration I think it best to give the Senate as little agency as possible in Executive matters, and to make the President as responsible as possible in them. Were the heads of departments dependent on the Senate, a faction in this branch might support them agst the President, distract the Executive department, and obstruct the public business. The danger of undue power in the President from such a regulation is not to me formidable. I see, and politically feel that that will be the weak branch of the Government. With a full power of removal, the President will be more likely to spare unworthy officers, thro’ fear than to displace the meritorious thro’ caprice or passion.—Mad. MSS.

[1 ]J. M.’s notes for speaking for amendts by Congress 1789.

Reasons for urging amendts

1. to prove fedts friends to liberty

2. remove remaining inquietudes.

3. bring in N. C. R. Island.

4. to improve the Constitution.

Reasons for moderating the plan.

1. No stop if door opened to theoretic amendts

2. as likely to make worse as better till tried.

3. insure passage by ⅔ of Congs & ¾ of Sts:

Objectns of 3 kinds vs. the Constn

1. vs. the theory of its structure.

2. vs. substance of its powers—elections & [illegible].

3. vs. omission of guards in favr of rights & liberty.

The last most urged & easiest obviated

Read the amendments—

They relate 1st to private rights—

Bill of Rights—useful not essential—fallacy in both sides, aspects [?]

as to English Decln of Rts—

1. mere act of parlt

2. no freedom of press—Conscience Gl Warrants—Habs Corpus jury in civil causes—criml attainders—arms to Protests

frequent Parlts—chief trust.

freedom of press & of conscience unknown to Magna Cha—& Pet: Rts

Contents of Bill of Rhts.

1. assertion of primitive equality &c.

2. do of rights exerted in formg of Govts

3. natural rights. retained as speach [illegible].

4. positive rights resultg as trial by jury.

5. Doctrinl artics vs. Depts distinct electn

6. moral precepts for the administrn. & natl. character—as justice—œconomy—&c.

Object of Bill Rhts.

To limit & qualify powr. by exceptg from grant cases in wch. it shall not be exercised or exd. in a particular manner.

to guard 1. vs Executive & in Engl &c—

2. Legislative as in Sts—

3. Majority of people.

ought to point as greatest danger which in Rep: is Prerogative of majority—Here proper, tho’ less neary than in small Repubs

Objectns—vs—Bill of Rhts.

1. in Elective Govts. all power in people hence unnecessary & improper—This vs Sts.

2. In fedl. Govt. all not given retained—Bill of powers—need no Bill of Rhts—

sweeping clause—Genl Warrants &c.

3. St: Bills not repeald

too uncertain

Some Sts have not bills — others defect: — others — injurious [illegible].

4. dispae other rights—or constructively enlarge—

The first goes vs. St: Bills—

both guarded vs. by amendts

5. Not effectl. — vs Sts also—but some check.

Courts will aid—also Ex: also Sts Legisls: watch

Time sanctify—incorporate public Sentiment

Bill of Rts ergo proper.

II increase of Reps—2 for each St.

III pay of Congs

IV Interdict to Sts as to Conscience—press—& jury—

This more necsy to Sts—ye Congs

V Check on appeals—co law

VI partn as to 3 Depts—& do as to Genl & St Govts. — Mad. MSS.

[1 ]The first clause of the bill after reciting the title and duties of the Secretary of the Department of Foreign Affairs provided that he was “to be removable from office by the President of the United States.”—Annals of Congress, i., 455.

[1]

TO EDMUND PENDLETON

N. York June 21, 1789.

Dear Sir,—

. . . . 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.

The last opinion has prevailed, but is subject to various modifications, by the power of the Legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations. In truth, the Legislative power is of such a nature that it scarcely can be restrained either by the Constitution or by itself. And if the federal Government should lose its proper equilibrium within itself, I am persuaded that the effect will proceed from the Encroachments of the Legislative department. If the possibility of encroachments on the part of the Ex or the Senate were to be compared, I should pronounce the danger to lie rather in the latter than the former. The mixture of Legislative, Executive & Judiciary authorities, lodged in that body, justifies such an inference, At the same [time], I am fully in the opinion that the numerous and immediate representatives of the people, composing the other House, will decidedly predominate in the Government.

Mr. Page tells me he has forwarded to you a copy of the amendments lately submitted to the H. of Reps. They are restrained to points on which least difficulty was apprehended. Nothing of a controvertible nature ought to be hazarded by those who are sincere in wishing for the approbation of ⅔ of each House, and ¾ of the State Legislatures.—Mad. MSS.

[1]

TO SAMUEL JOHNSTON.

New York, June 21, 1789.

Dear sir.

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.

In the enclosed paper is a copy of a late proposition in Congress on the subject of amending the Constitution. It aims at the two-fold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure. I need not remark to you the hazard of attempting anything of a controvertible nature which is to depend on the concurrence of ⅔ of both Houses here, and the ratification of ¾ of the State Legislatures. It will be some time before the proposed amendments will become a subject of discussion in Congress. The bills relating to revenue, and the organization of the Judiciary and Executive Departments, being likely to remain for some time on hand. This delay proceeds from the intricacy and partly from the novelty of the business. At every step difficulties from one or another of these sources arrest our progress. After the first essays the work will become every day more easy.

Among other difficulties, the exposition of the Constitution is frequently a Copious Source, and must continue so untill its meaning on all great points shall have been settled by precedents. The greatest part of the week past has been consumed in deciding a question as to the power of removal from offices held during pleasure. Four Constructive doctrines have been maintained 1, that the power is subject to the disposal of the Legislature. 2 that no removal can take place otherwise than by impeachment. 3 that the power is incident to that of appointment and therefore belongs to the President & Senate. 4 that the Executive power being generally vested in the President every power of an Executive Nature, not expressly excepted is to be referred thither, and consequently the power of removal, the power of appointment only being taken away.

In support of each of these constructions the Argumenta ab inconvenientibus have been elaborately dealt out against the others. The decision in a Committee of the whole on the Office of Foreign Affairs has adopted the 4th opinion as most consonant to the frame of the Constitution, to the policy of mixing the Legislature & Executive honors as little as possible, and to the responsibility necessary in the head of the Executive Department.

(Papers of Gov. Samuel Johnston of North Carolina.—N. C. Historical and Genealogical Register, vii., 105.)

[1 ]The bill containing in the second section an expression of the right of removal, passed the House June 27, and was finally passed by both Houses July 20.

[1]

TO EDMUND PENDLETON.

N. York, July 15, 1789.

Dear Sir—

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 strikingIt gives me much pleasure to find your approbation given to the decision of the House of Reps on the power of removal. This appears to be the case with several of our friends in Virga. of whose sentiments I had formed other conjectures. I was apprehensive that the alarms with regard to the danger of monarchy, would have diverted their attention from the impropriety of transferring an Executive trust from the most to the least responsible member of the Government. Independently of every other consideration, the primary objects on which the Senate are to be employed, seem to require that their executive agency should not be extended beyond the minimum that will suffice. As the Judiciary tribunal which is to decide on impeachments, they ought not to be called on previously, for a summary opinion on cases which may come before them in another capacity. And both on that account, and the necessity of keeping them in a fit temper to controul the capricious & factious counsels of the other Legislative branch, they ought to be as little as possible involved in those questions of a personal nature, which in all Governments are the most frequent & violent causes of animosity and party. . . .—Mad. MSS.

TO JAMES MONROE

N. Y., Aug. 9, 1789.

Dear Sir—

. . . . . . . . . . . . .

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.

The attention of the H. of Reps for some days has been confined to the subject of compensations. The bill is at length brought into its final shape. Much discussion took place on the quantum for the members of Congs, & the question whether it shd be the same for both Houses. My own opinion was in favor of a difference founded on a reduction of the sum proposed with regard to the H. of Reps. & an augmentation as to the Senate. As no difference took place, the case of the Senate and of the members from S. C. & Georga had real weight agst a lesser sum than 6 dollrs, which I own is higher than I had contemplated for the H. of Reps, & which I fear may excite criticisms not to be desired at the present moment.

Yesterday was spent on a Message from the President relative to Indian Affairs & the Militia Bills are ordered providing for a Treaty with the Hostile tribes, and for regulating the Militia. The latter is an arduous task & will probably not be compleated at this Session — Mad. MSS.

[1 ]Madison wrote to Archibald Stuart, August 12.

“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.

TO EDMUND RANDOLPH.

N. Y., Aug. 21, 89.

My Dear friend,—

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 Judiciary bill was put off in favr. of the preceding subject. It was evident that a longer delay of that wd. prevent any decision on it at this Session. A push was therefore made, which did not succeed without strenuous opposition. On monday the bill will probably be taken up & be pursued to afinal question as fast as the nature of the case will allow.

I find on looking over the notes of your introductory discourse in the Convention at Philada, that it is not possible for me to do justice to the substance of it. I am anxious for particular reasons to be furnished with the means of preserving this as well as the other arguments in that body, and must beg that you will make out & forward me the scope of your reasoning. You have your notes I know & from these you can easily deduce the argument on a condensed plan. I make this request with an earnestness wch. will not permit you either to refuse or delay a compliance.—Mad. MSS.

TO ALEXANDER WHITE.

N. York Aug. 24—1789,

Dear Sir

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.

On Saturday notice was given to the House by Mr Scott that on Thursday in this week he should bring in the subject of the permanent seat of Congress. [Illegible] & [illegible] in favr of Trenton ensued The like from Lancaster &c. also came forward. I suspect that the motion is the result of some [illegible] of a pretty serious nature. A great push will be made for Trenton which has I fear more partizans than might be wished. It is surmised that a coalition has taken place between Pa & the East states. I believe it to be the case in some degree, tho’ not fully. As far as I can gather, the coalition for Trenton might be broken, by accepting the Susquehannah, and leaving N. Y. the temporary enjoyment of Congs. This I believe is the ultimate [aim] of the N. Y. party, and will not do for us.

I suspect they begin to despair of a long possession of Congs and consequently mix the permanent with the temporary considerations. Having give you these facts your own judgment will best decide how far it may be worth while and incumbent on you to hasten your return.—N. Y. Pub. Lib. (Lenox) MSS.

Alexander White wrote from Philadelphia August 9, 1789, saying those people he had seen “Shew almost a childish anxiety for the removal of Congress to this place, and pretend to count votes by States and by Poll, treat the Idea of fixing the permanent Seat of Government on Patowmack within a Century to come as too ridiculous to merit Consideration, resting assured that whenever the Question is put, Delaware will be the place.”—Mad. MSS.

[1]

TO EDMUND PENDLETON.

N. Y., Sepr 14, 89.

Dear Sir,—

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 Senate have sent back the plan of amendments with some alterations which strike in my opinion at the most salutary articles. In many of the States juries even in criminal cases, are taken from the State at large; in others from districts of considerable extent; in very few from the County alone. Hence a [torn out] like to the restraint with respect to vicinage, which has produced a negative on that clause. A fear of inconvenience from a constitutional bar to appeals below a certain value, and a confidence that such a limitation is not necessary, have had the same effect on another article. Several others have had a similar fate. The difficulty of uniting the minds of men accustomed to think and act differently can only be conceived by those who have witnessed it.

A very important question is depending on the subject of a permanent seat for the fedl Govt. Early in the Session secret negociations were set on foot among the Northern States, from Penna, inclusively. The parties finally disagreeing in their arrangements, both made advances to the Southern members. On the side of N. Y. & N. Engd, we were led to expect the Susquehannah within a reasonable time, if we wd. sit still in N. York, otherwise we were threatened with Trenton. These terms were inadmissible to the friends of Potowmac. On the side of Penna., who was full of distrust and animosity agst. N. Engd. & N. York, the Potowmac was presented as the reward for the temporary advantages if given by the S. States. Some progress was made on this ground, and the prospect became flattering, when a reunion was produced among the original parties by circumstances which it wd be tedious to explain. The Susquehannah has in consequence been voted. The bill is not yet brought in and many things may yet happen. We shall parry any decision if we can, tho’ I see little hope of attaining our own object, the Eastern States being inflexibly opposed to the Potowmac & for some reasons which are more likely to grow stronger than weaker; and if we are to be placed on the Susquehannah, the sooner the better.—Mad. MSS.

[1]

TO EDMUND PENDLETON.

N. Y., Sepr 23, 1789.

Dear Sir,—

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.

The bill establishing the permanent Seat of Govt. has pasd. the H. of Reps in favr of the Susquehannah. Some of the Southern members, despaired so much of ever getting anything better, that they fell into the majority. Even some of the Virginians leaned that way. My own judgment was opposed to any compromise, on the supposition that we had nothing worse to fear than the Susquehannah, and could obtain that at any time, either by uniting with the Eastern States or Pennsylva. The bill however is by no means sure of passing the Senate in its present form. It is even possible that it may fall altogether. Those who wish to do nothing at this time, added to those who disapprove of the Susquehannah, either as too far South or too far North, or not susceptible of early conveniences for the fiscal administration, may form a majority who will directly or indirectly frustrate the measure. In case of an indirect mode, some other place will be substituted for Susquehannah, as Trenton or Germantown, neither of which can I conceive be effectually established, and either of which might get a majority composed of sincere and insidious votes. . . .—Mad. MSS.

[1 ]The passage of this amendment required the bill to go back to the Senate, and Congress adjourned September 29th before there was a chance for further action. Madison thus prevented the loss of the capital to the Potomac party.

[1 ]The letter was dated September 28th and signed by Richard Henry Lee and William Grayson. It said. “It is impossible for us not to see the necessary tendency to consolidated Empire, in the natural operation of the Constitution, if no further amended than now proposed,” and that civil liberty could not exist in an undivided government over so great a territory as the United States. They favored persevering application by the States to Congress for more amendments, and if it failed then a convention should be called.—Mad. MSS.

[1 ]Prepared probably for the President, who consulted Madison at this time more than he did any other person outside of the Cabinet.

[1]

TO THOMAS JEFFERSON.

New York, May 23, 1789.

Dear Sir,—

TO THOMAS JEFFERSON.

New York, May 27th, 1789.

Dear Sir,

. . . . . . . . . . .

I have been asked whether any appointment at home would be agreeable to you. Being unacquainted with your mind I have not ventured on an answer

TO EDMUND RANDOLPH.

N. York May 31, 1789.

My dear friend:

. . . . . . . . . . .

[1 ]Italics are for cypher

[2 ]See ante, p. 312.

[1 ]Italics are for cypher.

[1 ]Lee.

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1789 - TO GEORGE WASHINGTON. wash. mss. - James Madison, The Writings, vol. 5 (1787-1790) [1904]

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TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

TO HENRY LEE.mad. mss.COPY OF REMARKS ON SITUATION OF GREAT FALLS OF POTOWMACK [SENT TO COL. H. LEE AT WHOSE REQUEST DRAWN UP]1 JANY 1789

TO JAMES MADISON.mad. mss.

Hond. Sir

TO EDMUND RANDOLPH.mad. mss.

My dear friend,

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

Yrs.

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

Your Obedt. hble Servt,

TO THOMAS JEFFERSON.1

Dear Sir,—

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,

SPEECHES IN THE FIRST CONGRESS—FIRST SESSION.1

APRIL 9. DUTIES ON IMPORTS.

APRIL 21. DUTIES ON IMPORTS.

APRIL 21. DUTIES ON IMPORTS.

MAY 9. DUTIES ON IMPORTS.

May 11. titles.

MAY 12. DUTIES ON IMPORTS.

MAY 14. DUTIES ON IMPORTS.

MAY 19. POWER OF REMOVAL FROM OFFICE.

MAY 22. CITIZENSHIP OF THE UNITED STATES.

JUNE 8. AMENDMENTS TO THE CONSTITUTION.

JUNE 16. POWER OF REMOVAL FROM OFFICE.

JUNE 17. POWER OF REMOVAL FROM OFFICE.

JUNE 18. POWER OF REMOVAL FROM OFFICE.

JUNE 22. POWER OF REMOVAL FROM OFFICE.

JUNE 29. DUTIES OF THE COMPTROLLER.

AUGUST 13. AMENDMENTS TO THE CONSTITUTION.

SEPTEMBER 3. LOCATION OF THE CAPITAL.

SEPTEMBER 18. LOCATION OF THE CAPITAL.

SEPTEMBER 28. LOCATION OF THE CAPITAL.

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,—

TO GEORGE WASHINGTON.wash. mss.

Dear Sir,—

MEMORANDUM. DECEMBER, 1789.1mad. mss.

TO GEORGE EVE.

Sir,

(Put into the hands of confidential people in Penna & N. Jersey for the purpose of procuring followers.)

“Dear Sir,—

TO THOMAS JEFFERSON.

Dear Sir,—

TO THOMAS JEFFERSON.

Dear Sir,

TO EDMUND RANDOLPH.

My dear friend:

TO EDMUND PENDLETON

Dear Sir,—

TO SAMUEL JOHNSTON.

Dear sir.

TO EDMUND PENDLETON.

Dear Sir—

TO JAMES MONROE

TO HENRY LEE.mad. mss.

COPY OF REMARKS ON SITUATION OF GREAT FALLS OF POTOWMACK [SENT TO COL. H. LEE AT WHOSE REQUEST DRAWN UP]1 JANY 1789

Hon^d. Sir

Y^rs.

Your Obed^t. hble Serv^t,