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1821 - TO RICHARD RUSH. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) 
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. 9.
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TO RICHARD RUSH.mad. mss.
Apl. 21, 1821.
Your favor of Novr. 15, came duly to hand, with Mr. Ridgeley’s farming Pamphlet; for which I return my thanks.
The inflexibility of G. B. on the points in question with the U. S. is a bad omen for the future relations of the parties. The present commercial dispute, tho’ productive of ill humor will shed no blood. The same cannot be said of Impressments & blockades.
I have lately recd also Mr. Godwin’s attack on Malthus, which you were so good as to forward. The work derives some interest from the name of the Author and the singular views he has taken of the subject. But it excites a more serious attention by its tendency to disparage abroad the prospective importance of the U. S. who must owe their rapid growth to the principle combated.1
In this Country the fallacies of the Author will be smiled at only unless other emotions should be excited by the frequent disregard of the probable meaning of his opponent, and by the harshness of comments on the moral scope of his doctrine. Mr. G. charges him also with being dogmatical. Is he less so himself? and is not Mr. G. one of the last men who ought to throw stones at Theorists? At the moment of doing it too he introduces one of the boldest speculations in anticipating from the progress of chemistry an artificial conversion of the air the water & earth into food for man of the natural flavour and colour.
My memory does not retain all the features of Mr. Malthus’s System. He may have been unguarded in his expressions, & have pushed some of his notions too far. He is certainly vulnerable in assigning for the increase of human food, an arithmetical ratio. In a Country thoroughly cultivated, as China is said to be, there can be no increase. And in one as partially cultivated, and as fertile as the U. S. the increase may exceed the geometrical ratio. A surplus beyond it, for which a foreign demand has failed, is a primary cause of the present embarrassments of this Country.
The two cardinal points on which the two Authors are at issue, are 1. the prolific principle in the human race. 2. its actual operation, particularly in the U. S. Mr. G. combats the extent of both.
If the principle could not be proved by direct facts, its capacity is so analogous to what is seen throughout other parts of the animal as well as vegetable domain, that it would be a fair inference. It is true indeed that in the case of vegetables on which animals feed, and of animals the food of other animals, a more extensive capacity of increase might be requisite than in the Human race. But in this case also it is required, over and above the degree sufficient to repair the ordinary wastes of life, by two considerations peculiar to man: one that his reason can add to the natural means of subsistence for an increased number, which the instinct of other animals cannot; the other, that he is the only animal that destroys his own species.
Waiving however the sanction of analogy, let the principle be tested by facts, either stated by Mr. G. or which he cannot controvert.
He admits that Sweden has doubled her numbers, in the last hundred years, without the aid of emigrants. Here then there must have been a prolific capacity equal to an increase in ten centuries from 2 millions to 1000 mills.. If Sweden were as populous ten Centuries ago as now, or should not in ten Centuries to come arrive at a thousand millions, must not 998 mills. of births have been prevented; or that number of infants have perished? And from what causes?
The two late enumerations, in England which shew a rate of increase there much greater than in Sweden are rejected by Mr. G. as erroneous. They probably are so; tho’ not in the degree necessary for his purpose. He denies that the population increases at all. He even appeals with confidence to a comparison of what it has been with what it is at present as proving a decrease.
There being no positive evidence of the former numbers and none admitted by him of the Present, resort must be had to circumstantial lights; and these will decide the question with sufficient certainty.
As a general rule it is obvious that the quantity of food produced in a country determines the actual extent of its population. The number of people cannot exceed the quantity of food, and this will not be produced beyond the consumption. There are exceptions to the rule; as in the case of the U. S. which export food, and of the W. Indies which import it. Both these exceptions however favor the supposition that there has been an increase of the English population: England adding latterly imported food to its domestic stock, which at one period it diminished by exportation. The question to be decided is whether the quantity of food produced the true measure of the population consuming it, be greater or less now than heretofore.
In the savage state where wild animals are the chief food, the population must be the thinnest. Where reared ones are the chief food, as among the Tartars, in a pastoral State, the number may be much increased. In proportion as grain is substituted for animal food a far greater increase may take place. And as cultivated vegetables, & particularly roots, enter into consumption, the mass of subsistence being augmented, a greater number of consumers, is necessarily implied.
Now, it will not be pretended, that there is at present in England more of forest, and less of Cultivated ground than in the feudal or even much later periods. On the contrary it seems to be well understood that the opened lands have been both enlarged & fertilized; that bread has been substituted for flesh; and that vegetables, particularly roots have been more & more substituted for both. It follows that the aggregate food raised & consumed now, being greater than formerly, the number who consume it, is greater also.
The Report to the Board of Agriculture quoted by Mr. G. coincides with this inference. The Animal food of an individual which is the smaller part of it, requires, according to this authority, 2 acres of ground; all the other articles 1¾ of an acre only. The report states that a horse requires four acres. It is probable that an ox requires more, being fed less on grain & more on Grass.
It may be said that Horses which are not eaten are now used instead of oxen which were. But the horse as noted is supported by fewer acres than the ox; and the oxen superseded by the horses, form but a small part of the eatable Stock to which they belong. The inference therefore can at most be but slightly qualified by this innovation.
The single case of Ireland ought to have warned Mr. G. of the error he was maintaining. It Seems to be agreed that the population there has greatly increased of late years; altho’ it receives very few if any emigrants; and has sent out numbers, very great numbers, as Mr. G. must suppose, to the U. S.
In denying the increase of the Amn. population, from its own stock, he is driven to the most incredible suppositions, to a rejection of the best established facts, and to the most preposterous estimates & calculations.
He ascribes the rapid increase attested by our periodical lists, wholly to emigrations from Europe; which obliged him to suppose that from 1790, to 1810 150 thousand persons were annually transported; an extravagance which is made worse by his mode of reducing the no. necessary to one half; and he catches at little notices of remarkable numbers landed at particular ports, in particular seasons; as if these could be regarded as proofs of the average arrivals for a long series of years, many of them unfavorable for such transmigrations. In the year 1817, in which the emigrants were most numerous, according to Seybert, they did not in the ten Principal ports where with few if any exceptions they are introduced, exceed 22,240; little more than of the average annually assumed.
Were it even admitted that our population is the result altogether of emigrations from Europe, what wd. Mr. G. gain by it?
The Census for 1820 is not yet compleated. There is no reason however, to doubt that it will swell our numbers to about ten millions. In 1790 the population was not quite four millions. Here then has been an increase of six millions. Of these six five millions will have been drawn from the population of G. B. & Ireland. Have the numbers there been reduced accordingly? Then they must have been 30 years ago, greater by 5 millions than at this time. Has the loss been replaced? Then, as it has not been by emigrants, it must have been by an effect of the great principle in question. Mr. G. may take his choice of the alternatives.
It is worth remarking that N. England which has sent out such continued swarms to other parts of the Union for a number of years, has continued at the same time, as the Census shews to increase in population, altho’ it is well known that it has recd. comparatively very few emigrants from any quarter; these preferring places less inhabited for the same reason that determines the course of migrations from N. England.
The appeal to the case of the black population in the U. S. was particularly unfortunate for the reasoning of Mr. G. to which it gives the most striking falsification.
Between the years 1790 & 1810 the number of slaves increased from 694,280 to 1,165,441. This increase at a rate nearly equal to that of the Whites, surely was not produced by emigrants from Africa. Nor could any part of it have been imported, (except 30 or 40,0001 into S. Carolina & Georgia,) the prohibition being every where strictly enforced throughout that period. Louisiana indeed brought an addition amounting in 1810 to 37,671. This no. however (to be reduced by the slaves carried thither from other States prior to 1810) may be regarded as overbalanced by emancipated blacks & their subsequent offspring. The whole number of this description in the Census of 1810, amounts to 186,446.
The evidence of a natural and rapid increase of the Blacks in the State of Virginia is alone conclusive on the subject. Since the Epoch of Independence the importation of slaves has been uniformly prohibited, and the spirit of the people concurring with the policy of the law, it has been carried fully into execution. Yet the number of slaves increased from 292,627 in 1790 to 392,518 in 1810; altho’ it is notorious that very many have been carried from the State by external purchases and migrating masters. In the State of Maryland to the North of Virginia whence alone it could be surmised that any part of them could be replaced, there has been also an increase.
Mr. G. exults not a little (p. 420—2) in the detection of error in a paper read by Mr. W. Barton in 1791 to the Philosophical Society at Philda. I have not looked for the paper; but from the account of it given by Mr. G. a strange error was committed by Mr. B. not however in the false arithmetic blazoned by Mr. G., but by adding the number of deaths to that of births in deducing the Productiveness of marriages in a certain Parish in Massachusetts. But what is not less strange than the lapsus of Mr. B. is that his critic should overlook the fact on the face of the paper as inserted in his own Page, that the population of the Parish had doubled in 54 years, in spite of the probable removals from an old parish to newer settlements; And what is strangest of all, that he should not have attended to the precise statement in the record, that the number of births within the period exceeded the number of deaths, by the difference between 2,247 and 1,113. Here is the most demonstrable of all proofs of an increasing population unless a Theoretical zeal should suppose that the Pregnant women in the neighbourhood made lying in visits to Hingham, or that its sick inhabitants chose to have their dying eyes closed elsewhere.
Mr. G. has not respected other evidence in his hands, which ought to have opened his eyes to the reality of an increasing population in the U. S. In the population list of Sweden, in the authenticity of which he fully acquiesces as well as in the Census of the U. S. the authenticity of which he does not controvert, there is a particular column for those under ten years of Age. In that of Sweden, the number is to the whole population, as 2,484 to 10,000 which is less than ¼. In that of the U. S. the number is as 2,016,704 to 5,862,096, which is more than ⅓. Now Mr. G. refers (p. 442) to the proportion of the ungrown to the whole population, as testing the question of its increase. He admits & specifies the rate at which the population of Sweden increases. And yet with this evidence of a greater increase of the population of the U. S. he contends that it does not increase at all. An attempt to extricate himself by a disproportion of children or of more productive parents emigrating from Europe, would only plunge him the deeper into contradictions & absurdities.
Mr. G. dwells on the Indian Establishment at Paraguay by the Jesuits, which is said not to have increased as a triumphant disproof of the prolific principle. He places more faith in the picture of the establishment given by Raynal than is due to the vivid imagination of that Author, or than the Author appears to have had in it himself. For he rejects the inference of Mr. G. and reconciles the failure to increase with the power to increase by assigning two causes for the failure; the small-pox, and the exclusion of individual Property. And he might have found other causes, in the natural love of indolence till overcome by avarice & vanity motives repressed by their religious discipline; in the pride of the men, retaining a disdain of agricultural labour; and in the female habit of prolonging for several years the period of keeping children to the breast. In no point of view can a case marked by so many peculiar circumstances & these so imperfectly known, be allowed the weight of a precedent.
Mr. G. could not have given a stronger proof of the estrangement of his ideas from the Indian character & modes of life than by his referring to the Missouri Tribes, which do not multiply, “altho’ they cultivate corn.” His fancy may have painted to him fields of Wheat, cultivated by the Plough & gathered into Barns, as a provision for the year. How wd. he be startled at the sight of little patches of Maize & squashes, stirred by a piece of Wood, and that by the Squaws only; the hunters & warriors spurning such an occupation, & relying on the fruits of the Chase for the support of their Wigwams? “Corn Eaters” is a name of reproach given by some tribes to others beginning under the influence of the Whites to enlarge their cultivated spots.
In going over Mr. Gs volume, these are some of the remarks which occurred; and in thanking you for it, I have made them supply the want of more interesting materials for a letter. If the heretical Work should attract conversations in which you may be involved, some of the facts, which you are saved the trouble of hunting up, may rebut misstatements from misinformed friends or illiberal opponents of our Country.
You have not mentioned the cost of Godwin’s book or the pamphlet of Mr. Rigby. I suspect that they overgo the remnant of the little fund in your hands. If so let me provide for it. You will oblige me also by forwarding with its cost, the Book Entitled “The apocryphal New Testament translated from the Original Tongues,” “printed for Wm. Hone Ludgate Hill.”
TO SPENCER ROANE.mad. mss.
Montpr, May 6, 1821.
I recd. more than two weeks ago, your letter of Apl. 17. A visit to a sick friend at a distance, with a series of unavoidable attentions have prevented an earlier acknowledgment of it.
Under any circumstances I should be disposed rather to put such a subject as that to which it relates into your hands than to take it out of them. Apart from this consideration, a variety of demands on my time would restrain me from the task of unravelling the arguments applied by the Supreme Court of the U. S. to their late decision.1 I am particularly aware moreover that they are made to rest not a little on technical points of law, which are as foreign to my studies as they are familiar to yours.
It is to be regretted that the Court is so much in the practice of mingling with their judgments pronounced, comments & reasonings of a scope beyond them; and that there is often an apparent disposition to amplify the authorities of the Union at the expence of those of the States. It is of great importance as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation from it in practice detracts from the superiority of a Chartered over a traditional Govt. and mars the experiment which is to determine the interesting Problem whether the organization of the Political system of the U. S. establishes a just equilibrium; or tends to a preponderance of the National or the local powers, and in the latter case, whether of the national or of the local.
A candid review of the vicissitudes which have marked the progress of the General Govt. does not preclude doubts as to the ultimate & fixed character of a Political Establishment distinguished by so novel & complex a mechanism. On some occasions the advantage taken of favorable circumstances gave an impetus & direction to it which seemed to threaten subversive encroachments on the rights & authorities of the States. At a certain period we witnessed a spirit of usurpation by some of these on the necessary & legitimate functions of the former. At the present date, theoretic innovations at least are putting new weights into the scale of federal sovereignty which make it highly proper to bring them to the Bar of the Constitution.
In looking to the probable course and eventual bearing of the compound Govt. of our Country, I cannot but think that much will depend not only on the moral changes incident to the progress of society; but on the increasing number of the members of the Union. Were the members very few, and each very powerful, a feeling of self-sufficiency would have a relaxing effect on the bands holding them together. Were they numerous & weak, the Gov. over the whole would find less difficulty in maintaining & increasing subordination. It happens that whilst the power of some is swelling to a great size, the entire number is swelling also. In this respect a corresponding increase of centripetal & centrifugal forces, may be equivalent to no increase of either.
In the existing posture of things, my reflections lead me to infer that whatever may be the latitude of Jurisdiction assumed by the Judicial Power of the U. S. it is less formidable to the reserved sovereignty of the States than the latitude of power which it has assigned to the National Legislature; & that encroachments of the latter are more to be apprehended from impulses given to it by a majority of the States seduced by expected advantages, than from the love of Power in the Body itself, controuled as it now is by its responsibility to the Constituent Body.
Such is the plastic faculty of Legislation, that notwithstanding the firm tenure which judges have on their offices, they can by various regulations be kept or reduced within the paths of duty; more especially with the aid of their amenability to the Legislative tribunal in the form of impeachment. It is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions & policy of the Legislature.
Nor do I think that Congress, even seconded by the Judicial Power, can, without some change in the character of the nation, succeed in durable violations of the rights & authorities of the States. The responsibility of one branch to the people, and of the other branch to the Legislatures, of the States, seem to be, in the present stage at least of our political history, an adequate barrier. In the case of the alien & sedition laws, which violated the general sense as well as the rights of the States, the usurping experiment was crushed at once, notwithstanding the co-operation of the federal Judges with the federal laws.
But what is to controul Congress when backed & even pushed on by a majority of their Constituents, as was the case in the late contest relative to Missouri, and as may again happen in the constructive power relating to Roads & Canals? Nothing within the pale of the Constitution but sound arguments & conciliatory expostulations addressed both to Congress & to their Constituents.
On the questions brought before the Public by the late doctrines of the Supreme Court of the U. S. concerning the extent of their own powers, and that of the exclusive jurisdiction of Congress over the ten miles square and other specified places, there is as yet no evidence that they express either the opinions of Congress or those of their Constituents. There is nothing therefore to discourage a development of whatever flaws the doctrines may contain, or tendencies they may threaten. Congress if convinced of these may not only abstain from the exercise of Powers claimed for them by the Court, but find the means of controuling those claimed by the Court for itself. And should Congress not be convinced, their Constituents, if so, can certainly under the forms of the Constitution effectuate a compliance with their deliberate judgment and settled determination.
In expounding the Constitution the Court seems not insensible that the intention of the parties to it ought to be kept in view; and that as far as the language of the instrument will permit, this intention ought to be traced in the contemporaneous expositions. But is the Court as prompt and as careful in citing and following this evidence, when agst. the federal Authority as when agst that of the States? (See the partial reference of the Court to “The Federalist.”)1
The exclusive jurisdiction over the ten miles square is itself an anomaly in our Representative System. And its object being manifest, and attested by the views taken of it, at its date, there seems a peculiar impropriety in making it the fulcrum for a lever stretching into the most distant parts of the Union, and overruling the municipal policy of the States. The remark is still more striking when applied to the smaller places over which an exclusive jurisdiction was suggested by a regard to the defence & the property of the Nation.
Some difficulty, it must be admitted may result in particular cases from the impossibility of executing some of these powers within the defined spaces, according to the principles and rules enjoined by the Constitution; and from the want of a constitutional provision for the surrender of malefactors whose escape must be so easy, on the demand of the U. States as well as of the Individual States. It is true also that these exclusive jurisdictions are in the class of enumerated powers, to wch. is subjoined the “power in Congress to pass all laws necessary & proper for their execution.” All however that could be exacted by these considerations would be that the means of execution should be of the most obvious & essential kind; & exerted in the ways as little intrusive as possible on the powers and police of the States. And, after all, the question would remain whether the better course would not be to regard the case as an omitted one, to be provided for by an amendment of the Constitution. In resorting to legal precedents as sanctions to power, the distinctions should ever be strictly attended to, between such as take place under transitory impressions, or without full examination & deliberation, and such as pass with solemnities and repetitions sufficient to imply a concurrence of the judgment & the will of those, who having granted the power, have the ultimate right to explain the grant. Altho’ I cannot join in the protest of some against the validity of all precedents, however uniform & multiplied, in expounding the Constitution, yet I am persuaded that Legislative precedents are frequently of a character entitled to little respect, and that those of Congress are sometimes liable to peculiar distrust. They not only follow the example of other Legislative assemblies in first procrastinating and then precipitating their acts; but, owing to the termination of their session every other year at a fixed day & hour, a mass of business is struck off, as it were at shorthand, and in a moment. These midnight precedents of every sort ought to have little weight in any case.
On the question relating to involuntary submissions of the States to the Tribunal of the Supreme Court, the Court seems not to have adverted at all to the expository language when the Constitution was adopted; nor to that of the Eleventh Amendment, which may as well import that it was declaratory, as that it was restrictive of the meaning of the original text. It seems to be a strange reasoning also that would imply that a State in controversies with its own Citizens might have less of sovereignty, than in controversies with foreign individuals, by which the national relations might be affected. Nor is it less to be wondered that it should have appeared to the Court that the dignity of a State was not more compromitted by being made a party agst. a private person than agst a co-ordinate Party.
The Judicial power of the U. S. over cases arising under the Constitution, must be admitted to be a vital part of the System. But that there are limitations and exceptions to its efficient character, is among the admissions of the Court itself. The Eleventh Amendment introduces exceptions if there were none before. A liberal & steady course of practice can alone reconcile the several provisions of the Constitution literally at variance with each other; of which there is an example in the Treaty Power & the Legislative Power on subjects to which both are extended by the words of the Constitution. It is particularly incumbent, in taking cognizance of cases arising under the Constitution, and in which the laws and rights of the States may be involved, to let the proceedings touch individuals only. Prudence enjoins this if there were no other motive, in consideration of the impracticability of applying coercion to States.
I am sensible Sir, that these ideas are too vague to be of value, and that they may not even hint for consideration anything not occurring to yourself. Be so good as to see in them at least an unwillingness to disregard altogether your request. Should any of the ideas be erroneous as well as vague, I have the satisfaction to know that they will be viewed by a friendly as well as a candid eye.
TO PETER S. DU PONCEAU.chic. hist. soc. mss.
I canot return my thanks for your address on the subject of a central seminary of Jurisprudence without offering my best wishes for the success of such an Institution.
The Citizens of the U. S. not only form one people governed by the same code of laws, in all cases falling within the range of the Federal authority, but as Citizens of the different States, are connected by a daily intercourse & by multiplying transactions, which give to all an interest in the character, & in a reciprocal knowledge of the State laws also.
It is not only desirable therefore that the national code should receive whatever improvements the cultivation of law as a science may impart but that the local codes should be improved in like manner, and a general knowledge of each facilitated by an infusion of every practicable identity through the whole.
All these objects must be promoted by an Institution concentrating the talents of the most enlightened of the Legal profession, and attracting from every quarter the pupils most devoted to the studies leading to it.
Such an assemblage in such a position would have particular advantages for taking a comprehensive view of the local codes, for examining their coincidences and their differences, and for pointing out whatever in each might deserve to be adopted into the others, and it can not be doubted that something would be found in each worthy of a place in all.
This would be a species of consolidation having the happy tendency to diminish local prejudices, to cherish mutual confidence and to accommodate the intercourse of business between citizens of different States, without impairing the constitutional separation & Independence of the States themselves, which are deemed essential to the security of individual liberty as well as to the preservation of Republican Government.
Uniformity in the laws of the States might have another effect not without its value. These laws furnish in many cases the very principles & rules on which the decisions of the national Tribunal are to be hinged. A knowledge of them in such cases is indispensable. The difficulty of acquiring it whilst the several codes vary so much is obvious, and is a motive for imposing on the Judges of the Supreme Court of the Nation those itinerary duties which may suit neither their years nor can long be practicable within the expanding field of them, and which moreover preclude those enriching “lucubrations” by which they might do fuller justice to themselves, fulfill the better expectations at home, and contribute the more to the national character abroad.
I recd some time ago your recommendation of Mr. [Lardner Clark] Vanuxem for the Chemical Chair in the University of Virga President Cooper has borne his testimony also in favor of Mr. Vanuxem. Nothing can yet be sd on the prospect of his success, the other candidates not being yet known, and the time even of opening the University being uncertain.
TO SPENCER ROANE.mad. mss.
Montpellier, June 29, 1821
I have recd, and return my thanks for your obliging communication of the 20th instant. The papers of “Algernon Sidney” have given their full lustre to the arguments agst the suability of States by individuals, and agst the projectile capacity of the power of Congress within the “ten miles square.” The publication is well worthy of a Pamphlet form, but must attract Public attention in any form.
The Gordian Knot of the Constitution seems to lie in the problem of collision between the federal & State powers, especially as eventually exercised by their respective Tribunals. If the knot cannot be untied by the text of the Constitution it ought not, certainly, to be cut by any Political Alexander.
I have always thought that a construction of the instrument ought to be favoured, as far as the text would warrant, which would obviate the dilemma of a Judicial rencounter or a mutual paralysis; and that on the abstract question whether the federal or the State decisions ought to prevail, the sounder policy would yield to the claims of the former.
Our Governmental System is established by a compact, not between the Government of the U. States, and the State Governments; but between the States, as sovereign communities, stipulating each with the others, a surrender of certain portions, of their respective authorities, to be exercised by a Common Govt. and a reservation, for their own exercise, of all their other Authorities. The possibility of disagreements concerning the line of division between these portions could not escape attention; and the existence of some Provision for terminating regularly & authoritatively such disagreements, not but be regarded as a material desideratum.
Were this trust to be vested in the States in their individual characters, the Constitution of the U. S. might become different in every State, and would be pretty sure to do so in some; the State Govts. would not stand all in the same relation to the General Govt., some retaining more, others less of sovereignty; and the vital principle of equality, which cements their Union thus gradually be deprived of its virtue. Such a trust vested in the Govt. representing the whole and exercised by its tribunals, would not be exposed to these consequences; whilst the trust itself would be controulable by the States who directly or indirectly appoint the Trustees: whereas in the hands of the States no federal controul direct or indirect would exist the functionaries holding their appointments by tenures altogether independent of the General Govt..
Is it not a reasonable calculation also that the room for jarring opinions between the National & State tribunals will be narrowed by successive decisions sanctioned by the Public concurrence; and that the weight of the State tribunals will be increased by improved organizations, by selections of abler Judges, and consequently by more enlightened proceedings? Much of the distrust of these departments in the States, which prevailed when the National Constitution was formed has already been removed. Were they filled everywhere, as they are in some of the States, one of which I need not name, their decisions at once indicating & influencing the sense of their Constituents, and founded on united interpretations of constitutional points, could scarcely fail to frustrate an assumption of unconstitutional powers by the federal tribunals.
Is it too much to anticipate even that the federal & State Judges, as they become more & more co-ordinate in talents, with equal integrity, and feeling alike the impartiality enjoined by their oaths, will vary less & less also in their reasonings & opinions on all Judicial subjects; and thereby mutually contribute to the clearer & firmer establishment of the true boundaries of power, on which must depend the success & permanency of the federal republic, the best Guardian, as we believe, of the liberty, the safety, and the happiness of men. In these hypothetical views I may permit my wishes to sway too much my hopes. I submit the whole nevertheless to your perusal, well assured that you will approve the former, if you cannot join fully in the latter.
Under all circumstances I beg you to be assured of my distinguished esteem & sincere regard.
TO JOSEPH GALES.mad. mss.
Montpr. August 26, 1821
I thank you for your friendly letter of the 20th, inclosing an extract from notes by Judge Yates, of debates in the Convention of 1787, as published in a N. Y. paper.1 The letter did not come to hand till yesterday.2
If the extract be a fair sample, the work about to be published will not have the value claimed for it. Who can believe that so palpable a misstatement was made on the floor of the Convention, as that the several States were political Societies, varying from the lowest Corporation to the highest Sovereign; or that the States had vested all the essential rights of sovereignty in the Old Congress? This intrinsic evidence alone, ought to satisfy every candid reader of the extreme incorrectness of the passage in question. As to the remark that the States ought to be under the controul of the Genl Govt. at least as much as they formerly were under the King & B. Parliament, it amounts as it stands when taken in its presumable meaning, to nothing more than what actually makes a part of the Constitution; the powers of Congs being much greater, especially on the great points of taxation & trade than the B. Legislature were ever permitted to exercise.
Whatever may have been the personal worth of the 2 delegates from whom the materials in this case were derived, it cannot be unknown that they represented the strong prejudices in N. Y. agst the object of the Convention which was; among other things to take from that State the important power over its commerce to which it was peculiarly attached and that they manifested, untill they withdrew from the Convention, the strongest feelings of dissatisfaction agst. the contemplated change in the federal system and as may be supposed, agst. those most active in promoting it. Besides misapprehensions of the ear therefore, the attention of the notetaker wd. materially be warped, as far at least as, an upright mind could be warped, to an unfavorable understanding of what was said in opposition to the prejudices felt.
I have thought it due to the kind motives of your communication to say thus much; but, I do it in the well founded confidence, that your delicacy will be a safeguard agst. my being introduced into the Newspapers. Were there no other objection to it, there would be an insuperable one in the alternative of following up the task, or acquiescing in like errors as they may come before the public.
With esteem & friendly respects
TO JOHN G. JACKSON.mad. mss.
Montpr., Decr 27, 1821.
Your favor of the 9th came to hand a few days ago only; and the usages of the season, with some additional incidents have not allowed me time for more promptly acknowledging its friendly contents.
You were right in supposing that some arrangement of the Mass of papers accumulated through a long course of public life would require a tedious attention after my final return to a private station. I regret to say that concurring circumstances have essentially interfered with the execution of the task. Becoming every day more & more aware of the danger of a failure from delay, I have at length set about it in earnest; and shall continue the application as far as health and indispensable avocations will permit.
With respect to that portion of the Mass which contains the voluminous proceedings of the Convention, it has always been my intention that they should, some day or other, see the light. But I have always felt at the same time the delicacy attending such a use of them; especially at an early season. In general I have leaned to the expediency of letting the publication be a posthumous one. The result of my latest reflections on the subject, I cannot more conveniently explain, than by the inclosed extract from a letter1confidentially written since the appearance of the proceedings of the Convention as taken from the notes of Chf. Justc. Yates.
Of this work I have not yet seen a copy. From the scraps thrown into the Newspapers I cannot doubt that the prejudices of the author guided his pen, and that he has committed egregious errors at least, in relation to others as well as myself.
That most of us carried into the Convention a profound impression produced by the experienced inadequacy of the old Confederation, and by the monitory examples of all similar ones ancient & modern, as to the necessity of binding the States together by a strong Constitution, is certain. The necessity of such a Constitution was enforced by the gross and disreputable inequalities which had been prominent in the internal administrations of most of the States. Nor was the recent & alarming insurrection headed by Shays, in Massachusetts without a very sensible effect on the pub. mind. Such indeed was the aspect of things that in the eyes of all the best friends of liberty a crisis had arrived which was to decide whether the Amn. Experiment was to be a blessing to the world, or to blast forever the hopes which the republican cause had inspired; and what is not to be overlooked the disposition to give to a new system all the vigour consistent with Republican principles, was not a little stimulated by a backwardness in some quarters towards a Convention for the purpose, which was ascribed to a secret dislike to popular Govt and a hope that delay would bring it more into disgrace, and pave the way for a form of Govt. more congenial with Monarchical or Aristocratical Predilections.
This view of the crisis made it natural for many in the Convention to lean more than was perhaps in strictness warranted by a proper distinction between causes temporary as some of them doubtless were, and causes permanently inherent in popular frames of Govt. It is true also, as has been sometimes suggested that in the course of discussions in the Convention, where so much depended on compromise, the patrons of different opinions often set out on negotiating grounds more remote from each other, than the real opinions of either were from the point at which they finally met.
For myself, having from the first moment of maturing a political opinion down to the present one, never ceased to be a votary of the principle of self Govt., I was among those most anxious to rescue it from the danger which seemed to threaten it; and with that view was willing to give to a Govt. resting on that foundation, as much energy as would insure the requisite stability and efficacy. It is possible that in some instances this consideration may have been allowed a weight greater than subsequent reflection within the Convention, or the actual operation of the Govt. would sanction. It may be remarked also that it sometimes happened that opinions as to a particular modification or a particular power of the Govt. had a conditional reference to others which combined therewith would vary the character of the whole.
But whatever might have been the opinions entertained in forming the Constitution, it was the duty of all to support it in its true meaning as understood by the nation at the time of its ratification. No one felt this obligation more than I have done; and there are few perhaps whose ultimate & deliberate opinions on the merits of the Constitution accord in a greater degree with that Obligation.
The departures from the true & fair construction of the instrument have always given me pain, and always experienced my opposition when called for. The attempts in the outset of the Govt. to defeat those safe, if not necessary, & those politic if not obligatory amendments introduced in conformity to the known desires of the Body of the people, & to the pledges of many, particularly myself when vindicating & recommending the Constitution, was an occurrence not a little ominous. And it was soon followed by indications of political tenets, and by rules, or rather the abandonment of all rules of expounding it, wch. were capable of transforming it into something very different from its legitimate character as the offspring of the National Will. I wish I could say that constructive innovations had altogether ceased.
Whether the Constitution, as it has divided the powers of Govt. between the States in their separate & in their united Capacities, tends to an oppressive aggrandizement of the Genl Govt or to an Anarchical Independence of the State Govts. is a problem which time alone can absolutely determine. It is much to be wished that the division as it exists, or may be made with the regular sanction of the people, may effectually guard agst. both extremes; for it cannot be doubted that an accumulation of all Power in the Genl. Govt. wd. as naturally lead to a dangerous accumulation in the Executive hands, as that the resumption of all power by the several States wd. end in the calamities incident to contiguous & rival Sovereigns; to say nothing of its effect in lessening the security for sound principles of administration within each of them.
There have been epochs when the Genl. Govt. was evidently drawing a disproportion of power into its vortex. There have been others when States threatened to do the same. At the present moment it wd. seem that both are aiming at encroachments, each on the other. One thing however is certain, that in the present condition and temper of the Community, the Genl. Govt. cannot long succeed in encroachments contravening the will of a Majority of the States, and of the people. Its responsibility to these wd., as was proved on a conspicuous occasion, quickly arrest its career. If, at this time, the powers of the Genl. Govt be carried to unconstitutional lengths, it will be the result of a majority of the States & of the people, actuated by some impetuous feeling, or some real or supposed interest, overruling the minority, and not of successful attempts by the Genl Govt. to overpower both.
In estimating the greater tendency in the political System of the Union to a subversion, or to a separation of the States composing it, there are some considerations to be taken into the account which have been little Adverted to by the most oracular Authors on the Science of Govt. and which are but imperfectly developed as yet by our own experience. Such are the size of the States, the number of them, the territorial extent of the whole, and the degree of external danger. Each of these, I am persuaded, will be found to contribute its impulse to the practical direction which our great Political Machine is to take.
We learn, for the first time, the second loss sustained by your parental affection. You will not doubt the sincerity with which we partake the grief produced by both. I wish we could offer better consolations, than the condoling expressions of it. These must be derived from other sources. Afflictions of every kind are the onerous conditions charged on the tenure of life; and it is a silencing if not a satisfactory vindication of the ways of Heaven to man that there are but few who do not prefer an acquiescence in them to a surrender of the tenure itself.
We have had for a great part of the last & present years, much sickness in our own family, and among the black members of it not a little mortality. Mrs. Madison & Payne [Todd] were so fortunate as to escape altogether. I was one of the last attacked & that not dangerously. The disease was a typhoid fever, at present we are all well & unite in every good wish to Mrs. J & yourself & to Mary, & the rest of your family.
JONATHAN BULL & MARY BULL (1821).chic. hist. soc. mss.
(Written but not published at the period of the Missouri question.)
Jonathan Bull & Mary Bull, who were descendants of old Jno. Bull, the head of the family, had inherited contiguous estates in large tracts of land. As they grew up & became well acquainted, a partiality was mutually felt, and advances on several occasions made towards a matrimonial connection. This was particularly recommended by the advantage of putting their two estates under a common superintendence. Old B. however as guardian of both and having long been allowed certain valuable privileges within the Estates with which he was not long content had always found the means of breaking off the match which he regarded as a fatal obstacle to his secret design of getting the whole property into his own hands.
At a moment favorable as he thought for the attempt, he brought suit agst. both, but with a view of carrying it on in a way that would make the process bear on the parties in such different modes times and degrees as might create a jealousy & discord between them. J. & M. had too much sagacity to be duped. They understood well old Bull’s character and situation. They knew that he was deeply versed in all the subtleties of the law, that he was of a stubborn & persevering temper, and that he had moreover a very long purse. They were sensible therefore that the more he endeavoured to divide their interests & their defence of the suit the more they ought to make a common cause, and proceed in a concert of measures. As this could best be done by giving effect to the feelings long entertained for each other, an intermarriage was determined on, & solemnized with a deed of settlement as usual in such opulent matches, duly executed, and no event certainly of the sort was ever celebrated by a greater fervor or variety of rejoicings among the respective tenants of the parties. They had a great horror of falling into the hands of old B. and regarded the marriage of their proprietors under whom they held their freeholds as the surest mode of warding off the danger. They were not disappointed. United purses and good advocates compelled old B. after a hard struggle to withdraw the suit, and relinquish forever not only the new pretensions he had set up but the old privileges he had been allowed.
The marriage of J. and M. was not a barren one. On the contrary every year or two added a new member to the family and on such occasions the practice was to set off a portion of land sufficient for a good farm to be put under the authority of the child on its attaining the age of manhood, and these lands were settled very rapidly by tenants going as the case might be from the estates, sometimes of J. sometimes of M. and sometimes partly from one & partly from the other.
It happened that at the expiration of the non-age of the 10th. or 11th fruit of the marriage some difficulties were started concerning the rules & conditions of declaring the young party of age, and of giving him as a member of the family, the management of his patrimony. Jonathan became possessed with a notion that an arrangement ought to be made that would prevent the new farm from being settled and cultivated, as in all the latter instances, indiscriminately by persons removing from his and M’s estate and confine this privilege to those going from his own; and in the perverse humour which had seized him, he listened moreover to suggestions that M. had some undue advantage from the selections of the Head Stewards which happened to have been made much oftener out of her tenants than his.
Now the prejudice suddenly taken up by J. agst. the equal right of M’s tenants to remove with their property to new farms, was connected with a peculiarity in Mary’s person not as yet noticed. Strange as it may appear, the circumstance is not the less true, that M. when a Child had unfortunately recd from a certain African dye, a stain on her left arm which had made it perfectly black, and withal somewhat weaker than the other arm. The misfortune arose from a Ship from Africa loaded with the article which had been permitted to enter a river running thro’ her estate, and dispose of a part of the noxious cargo. The fact was well known to J. at the time of their marriage, and if felt as an objection, it was in a manner reduced to nothing by the comely form and pleasing features of M. in every other respect, by her good sense and amiable manners; and in part perhaps by the large and valuable estate she brought with her.
In the unlucky fit however which was upon him, he looked at the black arm, and forgot all the rest. To such a pitch of feeling was he wrought up that he broke out into the grossest taunts on M. for her misfortune; not omitting at the same time to remind her of his long forbearance to exert his superior voice in the appointment of the Head Steward. He had now he said got his eyes fully opened, he saw everything in a new light, and was resolved to act accordingly. As to the Head Steward he wd. let her see that the appointment was virtually in his power; and she might take her leave of all chance of ever having another of her tenants advanced to that station, and as to the black arm, she should, if the colour could not be taken out, either tear off the skin from the flesh or cut off the limb; For it was his fixed determination, that one or other should be done, or he wd. sue out a divorce, & there should be an end of all connection between them and their Estates. I have examined he said well the marriage settlement, and flaws have been pointed out to me, that never occurred before, by which I shall be able to set the whole aside. White as I am all over, I can no longer consort with one marked with such a deformity as the blot on your person.
Mary was so stunned with the language she heard that it was some time before she could speak at all; and as the surprise abated, she was almost choked with the anger & indignation swelling in her bosom. Generous and placable as her temper was, she had a proud sensibility to what she thought an unjust & degrading treatment, which did not permit her to suppress the violence of her first emotions. Her language accordingly for a moment was such as these emotions prompted. But her good sense, and her regard for J. whose qualities as a good husband she had long experienced, soon gained an ascendency, and changed her tone to that of sober reasoning & affectionate expostulation. Well my dear husband you see what a passion you had put me into. But it is now over, and I will endeavor to express my thoughts with the calmness and good feelings which become the relation of wife & husband.
As to the case of providing for our child just coming of age, I shall say but little. We both have such a tender regard for him and such a desire to see him on a level with his brethren as to the chance of making his fortune in the world, that I am sure the difficulties which have occurred will in some way or other be got over.
But I cannot pass so lightly over the reproaches you cast on the colour of my left arm, and on the more frequent appointment of my tenants than of yours to the head-stewardship of our joint estates.
Now as to the first point, you seem to have forgotten, my worthy partner, that this infirmity was fully known to you before our marriage, and is proved to be so by the deed of settlement itself. At that time you made it no objection whatever to our Union; and indeed how could you urge such an objection, when you were conscious that you yourself was not entirely free from a like stain on your own person. The fatal African dye, as you well know, had found its way into your abode as well as mine; and at the time of our marriage had spots & specks scattered over your body as black as the skin on my arm. And altho’ you have by certain abrasions and other applications, taken them in some measure out, there are visible remains which ought to soften at least your language when reflecting on my situation. You ought surely when you have so slowly and imperfectly relieved yourself from the mortifying stain altho’ the task was comparatively so easy, to have some forbearance and sympathy with me who have a task so much more difficult to perform. Instead of that you abuse me as if I had brought the misfortune on myself, and could remove it at will; or as if you had pointed out a ready way to do it, and I had slighted your advice. Yet so far is this from being the case that you know as well as I do that I am not to be blamed for the origin of the sad mishap, that I am as anxious as you can be to get rid of it; that you are as unable as I am to find out a safe & feasible plan for the purpose; and moreover that I have done everything I could, in the meantime, to mitigate an evil that cannot as yet be removed. When you talk of tearing off the skin or cutting off the unfortunate limb, must I remind you of what you cannot be ignorant that the most skilful surgeons have given their opinions that if so cruel an operation were to be tried, it could hardly fail to be followed by a mortification or a bleeding to death. Let me ask too whether, should neither of the fatal effects ensue, you would like me better in my mangled or mutilated condition than you do now? And when you threaten a divorce and an annulment of the marriage settlement, may I not ask whether your estate wd. not suffer as much as mine by dissolving the partnership between them? I am far from denying that I feel the advantage of having the pledge of your arm, your stronger arm if you please, for the protection of me & mine; and that my interests in general have been and must continue to be the better for your aid & counsel in the management of them. But on the other hand you must be equally sensible that the aid of my purse will have its value, in case old B. or any other rich litigious fellow should put us to the expense of another tedious lawsuit. And now that we are on the subject of loss & gain, you will not be offended if I take notice of a report that you sometimes insinuate that my estate according to the rates of assessment, does not pay its due share into the common purse. I think my dear J. that if you ever entertained this opinion you must have been led into it by a very wrong view of the subject as to the direct income from rents, there can be no deficiency on my part there; the rule of apportionment being clear & founded on a calculation by numbers. And as to what is raised from the articles bought & used by my tenants, it is difficult to conceive that my tenants buy or use less than yours, considering that they carry a greater amount of crops to market the whole of which it is well known they lay out in articles from the use of which the bailiff regularly collects the sum due. It wd. seem then that my tenants selling more, buy more; buying more use more, and using more pay more. Meaning however not to put you in the wrong, but myself in the right, I do not push the argument to that length, because I readily agree that in paying for articles bought & used you have beyond the fruits of the soil on which I depend ways & means which I have not. You draw chiefly the interest we jointly pay for the funds we were obliged to borrow for the fees & costs the suit of Old Bull put us to. Your tenants also turn their hands so ingeniously to a variety of handicrafts & other mechanical productions, that they make not a little money from that source. Besides all this, you gain much by the fish you catch & carry to market; by the use of your teams and boats in transporting and trading on the crops of my tenants; and indeed in doing that sort of business for strangers also. This is a fair statement on your side of the account, with the drawback however, that as your tenants are supplied with a greater proportion of articles made by themselves, than is the case with mine, the use of which articles does not contribute to the common purse, they avoid in the same proportion, the payments collected from my tenants. If I were to look still farther into this matter and refer you to every advantage you draw from the union of our persons & property, I might remark that the profits you make from your teams & boats & which enable you to pay your quota in great part, are drawn from the preference they have in conveying & disposing of the products of my soil; a business that might fall into other hands in the event of our separation. I mention this as I have already sd. not by way of complaint for I am well satisfied that your gain is not altogether my loss in this more than in many other instances; and that what profits you immediately may profit me also in the long run. But I will not dwell on these calculations & comparisons of interest which you ought to weigh as well as myself as reasons agst the measure to which you threaten a resort. For when I consult my own heart & call to mind all the endearing proofs you have given of yours qeing in sympathy with it, I must needs hope that there are other ties than mere interest to prevent us from ever suffering a transient resentment on either side, with or without cause, to bring on both all the consequences of a divorce; consequences too which wd be a sad inheritance indeed for our numerous and beloved offspring.
As to the other point relative to the Head Stewards I must own, my worthy husband, that I am altogether at a loss for any cause of dissatisfaction on your part or blame on mine. It is true as you say that they have been oftener taken from among my tenants than yours, but under other circumstances the reverse might as well have happened. If the individls appointed had made their way to the important trust by corrupt or fallacious means; if they had been preferred merely because they dwelt on my estate, or had succeeded by any interposition of mine contrary to your inclination; or finally if they had administered the trust unfaithfully, sacrificing your interests to mine, or the interests of both to selfish or unworthy purposes in either of these cases you wd have ground for your complaints. But I know J. that you are too just and too candid not to admit that no such ground exists. The head Stewards in question cd. not have been appointed without your own participation as well as mine. They were recommended to our joint choice by the reputed fairness of their characters, by their tried fidelity & competency in previous trusts, and by their exemption from all charges of impure & grasping designs, and so far were they from being partial to my interest at the expense of yours, that they were rather considered by my tenants as leaning to a management more favorable to yours than to mine. I need not say that I allude to the bounties direct or indirect to your teams & boats, to the hands employed in your fisheries, and to the looms and other machineries which witht. such encouragement wd. not be able to meet the threatened rivalships of interfering neighbors. I say only that these ideas were in the heads of some of my tenants. For myself I shd not have mentioned them but as a defence agst. what I must regard as so unfounded that it ought not to be permitted to make a lasting impression.1
But laying aside all these considerations, I repeat my dear J. that the appt of the Head Steward lies as much if not more with you than with me. Let the choice fall where it may, you will find me faithfully abiding by it, whether it be thought the best possible one or not, and sincerely wishing that he may equally improve better opportunities of serving us both than was the lot of any of those who have gone before him.
J. who had a good heart as well as sound head & steady temper was touched with this tender & considerate language of M. and the bickering wch had sprung up ended as the quarrels of lovers always, & of married folks sometimes do, in increased affection & confidence between the parties.
[1 ]See letter to Jefferson June 19, 1786, ante, Vol. II., p. 246. The work under discussion was William Godwin’s Of Population; an Enquiry Concerning the Power of Increase in the Numbers of Mankind, being an Answer to Mr. Malthus’s Essay on the Subject. London, 1820.
[1 ]See for exact no. Senator Smiths speech of last session.—Madison’s Note.
[1 ]The case referred to is Cohens v. Virginia. Chief Justice Marshall handed down the decision, which is highly federal in tone.—6 Wheaton, 257.
[1 ]“The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution, and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed.”—6 Wheaton, 294.
[1 ]Commercial Advertiser, Aug. 18, 1821.—Madison’s note.
[2 ]Gales sent the clipping with the remark: “If the whole work be of the same texture, it must be of little value, less authority.”—Mad. MSS.
[1 ]Madison’s note says: “See letter of 15th September, 1821, to Thomas Ritchie.” It is as follows:
I have recd. yours of the 8th instant on the subject of the proceedings of the Convention of 1787.
It is true as the Public has been led to understand, that I possess materials for a pretty ample view of what passed in that Assembly. It is true also that it has not been my intention that they should forever remain under the veil of secrecy. Of the time when it might be not improper for them to see the light, I had formed no particular determination. In general it had appeared to me that it might be best to let the work be a posthumous one, or at least that its publication should be delayed till the Constitution should be well settled by practice, & till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account. Delicacy also seemed to require some respect to the rule by which the Convention “prohibited a promulgation without leave of what was spoken in it,” so long as the policy of that rule could be regarded as in any degree unexpired. As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses.
Such being the course of my reflections I have suffered a concurrence & continuance of particular inconveniences for the time past, to prevent me from giving to my notes the fair & full preparation due to the subject of them. Of late, being aware of the growing hazards of postponement, I have taken the incipient steps for executing the task; and the expediency of not risking an ultimate failure is suggested by the Albany Publication, from the notes of a N York member of the Convention. I have not seen more of the volume than has been extracted into the Newspapers. But it may be inferred from these samples, that it is not only a very mutilated but a very erroneous edition of the matter to which it relates. There must be an entire omission also of the proceedings of the latter period of the session from which Mr. Yates & Mr. Lansing withdrew in the temper manifested by their report to their constituents; the period during which the variant & variable opinions, converged & centered in the modifications seen in the final act of the Body.
It is my purpose now to devote a portion of my time to an exact digest of the voluminous materials in my hands. How long a time it will require, under the interruptions & avocations which are probable, I cannot easily conjecture; not a little will be necessary for the mere labour of making fair transcripts. By the time I get the whole into a due form for preservation, I shall be better able to decide on the question of publication. As to the particular place or Press, shd this be the result, I have not as must be presumed, turned a thought to either. Nor can I say more now than that your letter will be kept in recollection, & that should any other arrangement prevail over its object, it will not proceed from any want of confidence esteem or friendly dispositions; of all which I tender you sincere assurances.—Mad. MSS.
[1 ]To Lafayette Madison wrote the same year (date not given).