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1824 - TO THOMAS JEFFERSON. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) [1910]Edition used:The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.
Part of: The Writings of James Madison, 9 vols.
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TO THOMAS JEFFERSON.mad. mss.Montpr., Jany 14, 1824, Dr SirI return the letters from Docr. Cooper inclosed in yours of the 7th. It is truly to be lamented that at his stage of life, and in the midst of his valuable labours, he should experience the persecutions which torment and depress him. Should he finally wish to exchange his present berth for one in our University, and make the proposition without any advances on our part, there could be no indelicacy in our receiving him. What I should dread would be that notwithstanding his pre-eminent qualifications, there might be difficulties to be overcome among ourselves in the first instance; and what is worse that the spirit which persecutes him where he is, would find a co-partner here not less active in poisoning his happiness and impairing the popularity of the Institution. We must await the contingency, and act for the best. You have probably noticed that the manner in which the Constitution as it stands may operate in the approaching election of President, is multiplying projects for amending it. If electoral districts, and an eventual decision by joint ballot of the two Houses of Congress could be established, it would, I think, be a real improvement; and as the smaller States would approve the one, and the larger the other, a spirit of compromise might adopt both. An appeal from an abortive ballot in the first meeting of the Electors, to a reassemblage of them, a part of the several plans, has something plausible, and in comparison with the existing arrangement, might not be inadmissible. But it is not free from material objections. It relinquishes, particularly, the policy of the Constitution in allowing as little time as possible for the Electors to be known & tampered with. And beside the opportunities for intrigue furnished by the interval between the first and second meeting, the danger of having one electoral Body played off against another, by artful misrepresentations rapidly transmitted, a danger not to be avoided, would be at least doubled. It is a fact within my own knowledge, that the equality of votes which threatened such mischief in 1801 was the result of false assurances despatched at the critical moment to the Electors of one State, that the votes of another would be different from what they proved to be. Having received letters from certain quarters on the subject of the proposed amendments, which I could not decline answering, I have suggested for consideration, “that each Elector should give two votes, one naming his first choice, the other naming his next choice. If there be a majority for the first, he to be elected; if not, and a majority for the next, he to be elected: If there be not a majority for either, then the names having the two highest number of votes on the two lists taken together, to be referred to a joint ballot of the Legislature.” It is not probable that this modification will be relished by either of those to whom it has been suggested; both of them having in hand projects of their own. Nor am I sure that there may not be objections to it which have been overlooked. It was recommended to my reflections by its avoiding the inconvenes of a second meeting of Electors, and at the same time doubling the chance of avoiding a final resort to Congress. I have intimated to my correspondents my disinclination to be brought in any way into the public discussion of the subject; the rather as every thing having a future relation only to a Presidential Election may be misconstrued into some bearing on that now depending. TO ROBERT S. GARNETT.mad. mss.Montpellier, Feb. 11, 1824. Dear Sir.The mail brought me the evening before the last, your favor of the 5th, with the copy of the “New Views, &c,” for which I tender my acknowledgments.1 I must put off the reading of such a work till it may be subject to less interruption than would at this time be unavoidable. From a glance at a few passages in the outset, I do not doubt that more competent lights as to the proceedings of the Convention would have saved the distinguished author from much error into which he may have been led by the faint or refracted rays to which he trusted. The general terms or phrases used in the introductory propositions, and now a source of so much constructive ingenuity, were never meant to be inserted in their loose form in the text of the Constitution. Like resolutions preliminary to legal enactments it was understood by all, that they were to be reduced by proper limitations and specifications, into the form in which they were to be final and operative; as was actually done in the progress of the session. Whether the Constitution in any of its stages or as it now stands, be a National or a federal one, is a question, which ought to be premised by a definition of the terms, and then the answer must be, that it is neither the one nor the other, but possessing attributes of both. It is a system of Government emphatically sui generis for designating which there consequently was no appropriate term or denomination pre-existing. If there be any thing in these hasty remarks which is rendered inapplicable by parts of the volume into which I have not yet looked, you will be as ready to excuse as sure to detect the misconception. With friendly respects and good wishes. TO THOMAS COOPER.1Montpellier, Mar. 23, 1824. Dear Sir.I have rec’d the little pamphlet on the Tariff before Congress, which you were so good as to send me.1 I had previously read its contents in the Newspapers; but they are well worth possessing in the other form you have given them. I have always concurred in the general principle that industrious pursuits of individuals ought to be left to individuals, as most capable of choosing & managing them. And this policy is certainly most congenial with the spirit of a free people, & particularly due to the intelligent & enterprizing citizens of the U. States. The true question to be decided therefore is, what are the exceptions to the rule, not incompatible with its generality; and what the reasons justifying them. That there are such cases, seems to be not sufficiently impressed on some of the opponents of the Tariff. Its votaries on the other hand, some of them at least, convert the exceptions into the rule, & would make the Government, a general supervisor of individual concerns. The length to which they push their system, is involving it in complexities & inconsistencies, which can hardly fail to end in great modifications, if not total miscarriage. What can be more incongruous than to tax raw material in an act for encouraging manufactures, or than to represent a temporary protection of them, as ensuring an early competition & reduction of prices; and at the same time to require for their safety, a progressive augmentation of the protecting import. I know not a better service, that could be rendered to the science of political economy, than a judicious explanation of the 3 cases constituting exceptions to the principle of free industry which as a general principle, has been so unanswerably established. You have glanced at some of them, among others that may be added. I would admit cases in which there could be scarce a doubt, that a manufacture, once brought into activity, would support itself, & be profitable to the nation. An example is furnished by the Cotton branch among ourselves, which if it had not been stimulated by the effect of the late war, might not for a considerable time have sprung up, and which with that impulse, has already reached a maturity, which not only supplies the home market, but faces its rivals in foreign ones. To guard the example however, against fallacious inferences, it has been well observed, that the manufactories in this case, owe their great success to the advantage they have, in the raw material, and to the extraordinary proportion of the work, which is performed by mechanical agency. Is it not fair also, in estimating the comparative cost of domestic and foreign products, to take into view the effect of wars, even foreign wars, on the latter? Were there a certainty of perpetual peace, & still more, a universal freedom of commerce, the theory might hold good without exception, that Government should never bias individuals in the choice of their occupation. But such a millenium has not yet arrived, and experience shows, that if peace furnishes supplies from abroad, cheaper than they can be made at home, the cost in war, may exceed that at which they could be afforded at home, whilst it can not be expected, that a home provision will be undertaken in war, if the return of peace is to break down the undertakers. It would seem reasonable therefore, that the war price should be compared with the peace price, and the war periods with the peace periods, which in the last century have been nearly equal, & that from these data, should be deduced the tax, that could be afforded in peace, in order to avoid the tax imposed by war. In yielding thus much to the patrons of domestic manufacturers, they ought to be reminded in every doubtful case, the Government should forbear to intermeddle; and that particular caution should be observed, where one part of the community would be favored at the expense of another. In Governments, independent of the people, the danger of oppression is from the will of the former. In Governments, where the will of the people prevails, the danger of injustice arises from the interest, real or supposed, which a majority may have in trespassing on that of the minority. This danger, in small Republics, has been conspicuous. The extent & peculiar structure of ours, are the safeguards on which we must rely, and altho’ they may occasionally somewhat disappoint us, we have a consolation always, in the greater abuses inseparable from Governments less free, and in the hope also, that the progress of political Science, and the lessons of experience will not be lost on the National Council. With great esteem & cordial respect. TO JOHN CARTWRIGHT.1mad. mss.1824. It is so long since I recd your volume on the English Constitution with the letter accompanying it that I must add to my thanks for the favors, an apology for the delay in returning them. I perceived at once that to do justice to such a Work it ought to be read with a continued attention which happened to be impossible till within a short time past. I am now able to say that I have found in your pages not a little to admire, very much to approve, but some things in which I cannot concur. Were I to name instances of the last, I should not omit your preference of a single to a double Legislature. The infirmities most besetting Popular Governments, even in the Representative Form, are found to be defective laws which do mischief before they can be mended, and laws passed under transient impulses, of which time & reflection call for a change. These causes, render the Statute Book complex and voluminous, multiply disputed cases between individuals, increase the expence of Legislation, and impair that certainty & stability which are among the greatest beauties, as well as most solid advantages of a well digested Code. A second Branch of the Legislature, consisting of fewer and riper members, deliberating separately & independently of the other, may be expected to correct many errors and inaccuracies in the proceedings of the other, and to controul whatever of passion or precipitancy may be found in them; and being in like manner with the other, elective & responsible, the probability is strengthened that the Will & interest of their Common Constituents will be duly pursued. In support of this view of the subject, it may be remarked that there is no instance among us of a change of a double for a single Legislature, whilst there is more than one of a contrary change; and it is believed, that if all the States were now to form their Govts. over again, with lights derived from experience, they would be unanimous in preferring two Legislative Chambers to a single one. I hope you will have no occasion to regret your early patronage of the Independence of this Country, or your approbation of the principles on which its Govts. have been established. Thus far the Trees can be safely tested by their fruits. It affords sincere pleasure to find your Govt. & Nation relaxing their prejudices agst. us. Experience has proved what a few on your side as well as on this foresaw, that the separation of the Colonies tho’ a gain to them, would be no loss of retainable Commerce to the Parent State, whilst it would be a gain to its Treasury in the diminished demands on it. It remains for the two Countries now, but to cultivate mutual good will, to enrich & improve each other by all the interchanges having these tendencies, and to promote by their examples the improvement & happiness of all other Countries. I beg you to accept my acknowledgts. for the friendly sentiments you have addressed to me, & to be assured of my great respects & good wishes. TO HENRY CLAY.mad. mss.Montpellier, Apl., 1824. Dr. Sir,—I have recd. the copy of your speech on “American Industry” for which I pray you to accept my thanks. I find in it a full measure of the Ability & Eloquence so often witnessed on preceding occasions. But whilst doing this justice to the task you have performed, which I do with pleasure as well as sincerity, candor obliges me to add that I cannot concur in the extent to which the pending Bill carries the Tariff, nor in some of the reasonings by which it is advocated. The Bill, I think loses sight too much of the general principle which leaves to the judgment of individuals the choice of profitable employments for their labor & capital; and the arguments in favor of it, from the aptitudes of our situation for manufacturing Establishments, tend to shew that these would take place without a legislative interference. The law would not say to the Cotton planter you overstock the Market, and ought to plant Tobacco; nor to the Planter of Tobo., you would do better by substituting Wheat. It presumes that profit being the object of each, as the profit of each is the wealth of the whole, each will make whatever change the state of the Markets & prices may require. We see, in fact, changes of this sort frequently produced in Agricultural pursuits, by individual sagacity watching over individual interest. And why not trust to the same guidance in favor of manufacturing industry, whenever it promises more profit than any of the Agricultural branches, or more than mercantile pursuits, from which we see Capital readily transferred to manufacturing establishments likely to yield a greater income. With views of the subject such as this, I am a friend to the general principle of “free industry” as the basis of a sound system of political Economy. On the other hand I am not less a friend to the legal patronage of domestic manufactures, as far as they come within particular reasons for exceptions to the general rule, not derogating from its generality. If the friends of the Tariff, some of them at least, maintain opinions subversive of the rule, there are, among its opponents, views taken of the subject which exclude the fair exceptions to it. For examples of these exceptions I take 1. the case of articles necessary for national defence. 2. articles of a use too indispensable to be subjected to foreign contingencies. 3. Cases where there may be sufficient certainty, that a temporary encouragement will introduce a particular manufacture, which once introduced will flourish without that encouragement. That there are such cases is proved by the Cotton manufacture, introduced by the impulse of the war & the patronage of the law, without wch. it might not for a considerable time have effectually sprung up. It must not be forgotten however that the great success in this case was owing to the advantage in the raw material, and to the extraordinary degree in which manual labor is abridged by mechanical agency. 4. A very important exception results from the frequency of wars among the manufacturing nations, the effect of a state of war on the price of their manufactures, and the improbability that domestic substitutes will be provided by establishments which could not outlast occasions of such uncertain duration. I have not noticed any particular reference to this consideration, in the printed discussions; the greater cheapness of imported fabrics being assumed from their cost in time of peace. Yet it is clear that if a yard of imported cloth which costs 6 dollars in peace, costs 8 in war, & the two periods should be as for the last two Centuries taken together, nearly equal, a tax of nearly one dollar a yard in time of peace, could be afforded by the Consumer, in order to avoid the tax imposed by the event of war. Without looking for other exceptions to the principle restraining Legislative interference with the industrious pursuits of individuals, those specified give sufficient scope for a moderate tariff that would at once answer the purpose of revenue, and foster domestic manufactures. With respect to the operation of the projected Tariff, I am led to believe that it will disappoint the calculations both of its friends & of its adversaries. The latter will probably find that the increase of duty on articles which will be but partially manufactured at home, with the annual increment of consumers, will balance at least, the loss of the Treasury from the diminution of tariffed imposts: Whilst the sanguine hopes of the former will be not less frustrated by the increase of smuggling, particularly thro’ our East & North frontiers, and by the attraction of the labouring classes to the vacant territory. This is the great obstacle to the spontaneous establishment of Manufactories, and will be overcome with the most difficulty wherever land is cheapest, and the ownership of it most attainable. The Tariff, I apprehend, will disappoint those also, who expect it to put an end to an unfavorable balance of trade. Our imports, as is justly observed, will not be short of our exports. They will probably exceed them. We are accustomed to buy not only as much as we can pay for, but as much more as can be obtained on credit. Until we change our habits therefore, or manufacture the articles of luxury, as well as the useful articles; we shall be apt to be in arrears, in our foreign dealing, and have the exchange bearing agst. us. As long as our exports consist chiefly of food & raw materials, we shall have the advantage in a contest of privations with a nation supplying us with superfluities. But in the ordinary freedom of intercourse the advantage will be on the other side; the wants on that being limited by the nature of them, and ours as boundless as fancy and fashion. Excuse a letter which I fear is much too long, and be assured of my great esteem & sincere regard. TO EDWARD LIVINGSTON.mad. mss.Montpellier April 17, 1824. Dear SirI have been retarded in thanking you for the copy of your speech on the subject of internal improvement, by a necessary absence from home, and by successive occurrences since my return. I now beg you to accept that debt to your kindness.1 I have read your observations with a due perception of the ability which pervades and the eloquence which adorns them; and I must add, not without the pleasure of noticing that you have pruned from the doctrine of some of your fellow labourers, its most luxuriant branches. I cannot but think at the same time, that you have left the root in too much vigour. This appears particularly in the question of Canals. My impression with respect to the authority to make them may be the stronger perhaps, (as I had occasion to remark as to the Bank on its original discussion,) from my recollection that the authority had been repeatedly proposed in the Convention, and negatived, either as improper to be vested in Congress, or as a power not likely to be yielded by the States. My impression is also very decided, that if the construction which brings Canals within the scope of commercial regulations, had been advanced or admitted by the advocates of the Constitution in the State Conventions, it would have been impossible to overcome the opposition to it. It is remarkable that Mr. Hamilton himself, the strenuous patron of an expansive meaning in the text of the Constitution fresh in his memory, and in a Report contending for the most liberal rules of interpretation, was obliged by his candour, to admit that they could not embrace the case of Canals. In forbearing to exercise doubtful powers, especially when not immediately and manifestly necessary, I entirely agree with you. I view our political system also, as you do, as a combination and modification of powers without a model; as emphatically sui generis, of which one remarkable feature is, its annihilation of a power inherent in some branch of all other governments, that of taxing exports. I wish moreover that you might be followed in the example of defining the terms used in argument, the only effectual precaution against fruitless and endless discussion. This logical precept is peculiarly essential in debating Constitutional questions, to which for want of more appropriate words, such are often applied as lead to error and confusion. Known words express known ideas; and new ideas, such as are presented by our novel and unique political system, must be expressed either by new words, or by old words with new definitions. Without attention to this circumstance, volumes may be written which can only be answered by a call for definitions; and which answer themselves as soon as the call is complied with. It cannot be denied without forgetting what belongs to human nature, that in consulting the contemporary writings, which vindicated and recommended the Constitution, it is fair to keep in mind that the authors might be sometimes influenced by the zeal of advocates: But in expounding it now, is the danger of bias less from the influence of local interests, of popular currents, and even from an estimate of national utility. Having rambled thus far I venture on another devious step, by alluding to your inference from a passage in one of my messages, that in a subsequent one, my objection was not to the power, but to the details of the Bill in which it was exercised. If the language was not more carefully guarded against such an inference it must have been because I relied on a presumed notoriety of my opinion on the subject; and probably considered the terms, “existing powers,” as essentially satisfied by the uncontested authority of Congress over the Territories. TO HENRY LEE.mad. mss.Montpellier, June 25, 1824. I have received, Sir, your letter of the 18th, inclosing the proposal of a new publication, under the title of “American Gazette & Literary Journal.” Of the prospectus I cannot say less than that it is an interesting specimen of cultivated talents. I must say at the same time that I think it concedes too much to a remedial power in the press over the spirit of party. Besides the occasional and transient subjects on which parties are formed, they seem to have a permanent foundation in the variance of political opinions in free States, and of occupations and interests in all civilized States. The Constitution itself, whether written or prescriptive, influenced as its exposition and administration will be, by those causes, must be an unfailing source of party distinctions. And the very peculiarity which gives pre-eminent value to that of the United States, the partition of power between different governments, opens a new door for controversies and parties. There is nevertheless sufficient scope for combating the spirit of party, as far as it may not be necessary to fan the flame of liberty, in efforts to divert it from the more noxious channels; to moderate its violence, especially in the ascendant party; to elucidate the policy which harmonizes jealous interests; and particularly to give to the Constitution that just construction, which, with the aid of time and habit, may put an end to the more dangerous schisms otherwise growing out of it. With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption. Not to look farther for an example, take the word “consolidate” in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union. On the other point touched in your letter, I fear I shall not very soon be able to say anything. Notwithstanding the importance of such a work as that of Judge Johnson, and the public standing of the author, I have never given it a reading. I have put it off, as in several other voluminous cases, till I could go through the task with a less broken attention. While I find that the span of life is contracting much faster than the demands on it can be discharged, I do not however abandon the proposed perusal of both the “Life of Greene,” and “the Campaign of 1781.” TO HENRY WHEATON.chic. hist. soc. mss.Montpr. July 11, 1824. Dr SirI have recd. your letter of the 3 inst: referring to a penciled note of mine on a letter from Mr. Pinkney. It is a fact as there noted, that when the Embargo was recommended to Congs. Decr. 18, 1807, a copy of the British orders in Council of Novr. 11, 1807, as printed in an English newspaper, stating them to be ready in that form to be signed and issued, lay on the President’s table. From what quarter the Newspaper came, or whether known, I do not recollect. But the measure it threatened could not be doubted, and manifestly required, if there had been no other grounds for apprehending the danger, that American property & seamen should not be exposed to it. Besides the precise warning contained in the Newspaper, it was generally understood that some such outrage was contemplated by the British Cabinet. I do not pretend to recollect the several grounds for the belief. The files of the Department of State may contain some of them. In a private letter of Ocr. 5, 1807 from an intelligent & close observer in London of the indicated views of the Cabinet towards the U. S. I find the following passage “The Gazette of Saturday has gone by without announcing the injurious Blockade of all French ports & all ports under the influence of France, which was threatened all the week and very generally expected. Another letter from the same of Ocr. 11, adds. “Two more Gazettes have been published without announcing the rigorous blockade, one of them as late as last night. I hope they have thought better of it.” Altho’ it is true therefore that no official evidence existed of the Orders in Council when the Embargo was recommended, there was a moral certainty in the evidence described by Mr. Pinkney (vol. 6, p. 190 of State papers) which included “the Newspapers of this Country (G. B.) recd in the U. S. some days before the Message of the President.” To this view of the case the language of the Message was accommodated. And the subsequent message of Feby. 2, 1808, founded on the official recg. of the Orders in Council squares with the idea that they had been unofficially known when the provident measure of the Embargo was recommended. If the files of Cong of that period are in preservation, the papers communicated with the Message may throw light on the subject. I cannot, I think, be mistaken in saying that the information in the English Newspaper was republished in the National Intelligencer; and if so that alone must settle the question. I am glad to find you turning a critical attention to this subject. No part of the public proceedings during the two last administrations is less understood, or more in danger of historical misinterpretations, than the Embargo and the other restrictions of our external commerce. It has become the fashion to decry the whole as inefficacious and unworthy substitutes for war. That immediate war under existing circumstances was inexpedient & that experimental measures short of war were preferable to naked submission can not well be doubted. It is equally clear That the Embargo as a precaution agst. the surprise and devastation of our trade, was proper, even if war had been intended, and the presumption is strengthened by late experience that if faithfully executed it would have produced a crisis in the Brit: W. Indies that might have extorted justice without a resort to war. If it failed, it was because the Govt. did not sufficiently distrust those in a certain quarter whose successful violations of the law led to the general discontent witch called for its repeal. Could the bold and combined perfidies have been anticipated, an expence which would have proved economical, might have prevented or quickly subdued them. The patriotic fishermen of Marblehead at one time offered their services; and if they cd. at an early day have been employed in armed vessels, with a right to their prizes, and an authority to carry them into ports where the Tribunals would have enforced the law, the smuggling would have been crushed. With respect to the restrictive laws generally, it is a known fact that under all the disadvantages which they encountered their pressure on the manufactures of G. Britain as reported to the Parlt. and painted by Mr. Brougham ultimately brought about a revocation of the predatory orders. It is remarkable that this revocation bearing date June 23d followed at no very long interval the letter of Castlereagh to Foster communicated in extenso to the American Govt. in which it was haughtily declared that the Orders in Council would not be repealed; and consistently with other engagements could not be repealed; a declaration which leaving no alternative to the U. S. but submission or war, was met of course by the latter. Had the repeal of the orders taken place a few weeks sooner, it is to be presumed that the declaration of war which preceded the repeal would at least have been suspended by that event, with an experiment under its auspices of further negotiations for a discontinuation of impressments, the other great obstacle to pacific relations; and that the success of the restrictive laws in obtaining the repeal without a resort to war, would have been followed by songs of praise, instead of the criticisms to which an oblivion of their efficacy has given rise. July 21, 1824. P. S. After writing the above it occurred that it might be well to consult the recollections & memoranda of Mr Jefferson. His answer just recd. says “there is no fact in the course of my life which I recollect more strongly than that of my being at the date of the message in possession of an English Newspaper containing a copy of the proclamation [Orders] &c. which I think came to me thro’ a private channel.” The answer extracts from his notes on the occasion circumstances in full accordance with his memory, and he does not doubt that the general fact is remembered by all the then members of the Cabinet and probably attested by the papers communicated to Congress with the Message. Mr. J. thinks also as I do myself that the turn of the argts. of the opposition party will be found not to deny the fact, but the propriety of acting on Newspaper authority. TO JAMES MONROE.mad. mss.Montpr., August 5, 1824. Dr. SirI have just had the pleasure of receiving yours of the 2d. We had looked for the greater pleasure of giving a welcome about this time to you & Mrs. M. being informed from Albemarle that you were to be there in a few days. We are very sorry for the uncertainty you intimate, but still hope that Mrs. M’s health will not only permit you to make the journey, but her to join you in it. It coud not fail to be beneficial to both, and you owe it to yourself as well as to your friends to take some repose with them after the vexations which have beset you. Come I pray you & be not in your usual hurry. The Convention with Russia is a propitious event as substituting amicable adjustment for the risks of hostile collision.1 But I give the Emperor however little credit for his assent to the principle of “Mare liberator” in the North Pacific. His pretensions were so absurd, & so disgusting to the Maritime world that he cd. not do better than retreat from them thro’ the forms of negotiation. It is well that the cautious, if not courteous policy of Engd. towards Russia has had the effect of making us, in the public eye, the leading Power in arresting her expansive ambition. It is as you note an important circumstance in the case, that the principles & views unfolded in your Message were not unknown at St. Petersburg at the date of the Convention. It favors the hope that bold as the allies with Russia at their head, have shewn themselves in their enmity to free Govt. everywhere, the maritime capacities of the U. S. with the naval & pecuniary resources of G. B. have a benumbing influence on all their wicked enterprises. The advances of France towards a compromise with Colombia, if sincere, is a further indication of the dread of the united strength & councils of this Country & G. Britain. The determination of the latter not to permit foreign interference in the contest between Spain & South America, if confided in with the language of your message on the subject, ought I think to quiet the apprehensions of Colombia; and to parry the question of Mr. Salazar, at least till the meeting of Congs, knowing as he must do the incompetency of the Executive to give a precise answer. Repeating my exhortations in all which Mrs. M. joins me, we offer Mrs. M. & yourself our affectionate respects & best wishes. TO PETER S. DUPONCEAU.chic. hist. soc. mss.Montpellier Aug 1824. Dr. SirI recd. the copy of your discourse on the Jurisdiction of the courts of the U. S. with which you favoured me, at a time when I could not conveniently read it; and I have since been obliged to do it with such interruptions that I am not sure of having done entire justice to your investigations.1 I have certainly found in the volume ample evidence of the distinguished ability of which the public had been made sensible by other fruits of your pen. I must say at the same time that I have not been made a convert to the doctrine that the “Common Law” as such is a part of the law of the U. S. in their federo-national capacity. I can perceive no legitimate avenue for its admission beyond the portions fairly embraced by the Common law terms used in the Constitution, and by acts1 of Congress authorized by the Constitution as necessary & proper for executing the powers which it vests in the Government. A characteristic peculiarity of the Govt. of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govts. possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd. be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted, and such appears to have been the public view taken of the Instrument, whether we recur to the period of its ratification by the States, or to the federal practice under it. That the Constitution is predicated on the existence of the Common Law cannot be questioned; because it borrows therefrom terms which must be explained by Com: Law authorities: but this no more implies a general adoption or recognition of it, than the use of terms embracing articles of the Civil Law would carry such an implication. Nor can the Common Law be let in through the authority of the Courts. That the whole of it is within their jurisdiction, is never alledged, and a separation of the parts suited from those not suited to the peculiar structure & circumstances of the U. States involves questions of expediency & discretion, of a Legislative not Judicial character. On questions of criminal law & jurisdiction the strict rule of construction prescribed by the Com: Law itself would seem to bar at once an assumption of such a power by the Courts. If the Common Law has been called our birthright, it has been done with little regard to any precise meaning. It could have been no more our birthright than the Statute law of England, or than the English Constitution itself. If the one was brought by our ancestors with them, so must the others; and the whole consequently as it stood during the Dynasty of the Stuarts, the period of their emigration, with no other exceptions than such as necessarily resulted from inapplicability to the colonial state of things. As men our birthright was from a much higher source than the common or any other human law and of much greater extent than is imparted or admitted by the common law. And as far as it might belong to us as British subjects it must with its correlative obligations have expired when we ceased to be such. It would seem more correct therefore & preferable in every respect that the common law, even during the Colonial State, was in force not by virtue of its adhesion to the emigrants & their descendants in their individual capacity but by virtue of its adoption in their social & political capacity. How far this adoption may have taken place through the mere agency of the courts cannot perhaps be readily traced. But such a mode of introducing laws not otherwise in force ought rather to be classed among the irregularities incident to the times & the occasion, than referred to any in G. Britain, where the courts though sometimes making legal innovations per saltus profess that these should grow out of a series of adjudications, gradually accommodating the law to the gradual change of circumstances in the ordinary progress of society. On sound principles, no change whatever in the state of the Law can be made but by the Legislative authority; Judicial decisions being not more competent to it than Executive proclamations. But whatever may have been the mode or the process by which the Common law found its way into the colonial codes, no regular passage appears to have been opened for it into that of the [U.] S. other than through the two channels above mentioned; whilst every plea for an irregular one is taken away, by the provident article in the constitution for correcting its errors & supplying its defects. And although a frequent resort to this remedy be very undesirable, it may be a happy relief from the alternative of enduring an evil or getting rid of it by an open or surreptitious usurpation. I must not forget however that it is not my intention to enter into a critical, much less a controversial examination of the subject; and I turn with pleasure from points on which we may differ, to an important one on which I entirely agree with you. It has always appeared to me impossible to digest the unwritten law or even the penal part of it, into a text that would be a compleat substitute. A Justinian or Napoleon Code may ascertain, may elucidate, and even improve the existing law, but the meaning of its complex technical terms, in their application to particular cases, must be sought in like sources as before; and the smaller the compass of the text the more general must be its terms & the more necessary the resort to the usual guides in its particular applications. With assurances of my high esteem I pray you Sir, to accept my unfeigned good wishes TO THOMAS JEFFERSON.mad. mss.Montpellier, Septr 10, 1824. Dear SirOn the rect. of yours of Aug. 8, I turned my thoughts to its request on the subject of a Theological Catalogue for the Library of the University; and not being aware that so early an answer was wished, as I now find was the case, I had proceeded very leisurely in noting such Authors as seemed proper for the collection. Supposing also, that altho’ Theology was not to be taught in the University, its Library ought to contain pretty full information for such as might voluntarily seek it in that branch of Learning, I had contemplated as much of a comprehensive & systematic selection as my scanty materials admitted; and had gone thro’ the five first Centuries of Xnity when yours of the 3d instant came to hand which was the evening before the last. This conveyed to me more distinctly the limited object your letter had in view, and relieved me from a task which I found extremely tedious; especially considering the intermixture of the doctrinal & controversial part of Divinity with the moral & metaphysical part, and the immense extent of the whole. I send you the list I had made out, with an addition on the same paper, of such Books as a hasty glance of a few catalogues & my recollection suggested.1 Perhaps some of them may not have occurred to you and may suit the blank you have not filled. I am sorry I could not make a fair copy without failing to comply with the time pointed out. I find by a letter from Fayette, in answer to a few lines I wrote him on his arrival at N. Y., that he means to see us before the 19th of Oct., as you have probably learned from himself. His visit to the United States will make an annus mirabilis in the history of Liberty. TO A. B. WOODWARD.mad. mss.Montpellier, Sepr 11, 1824. Dr. Sir,I have recd. & return my thanks for the printed communications accompanying your note of the 4th inst. To appreciate your proposed expedient for a standard of measures & weights would require more time than I can apply, & more mathematical Science than I retain. Justice will doubtless be done to it by competent Judges. I have given a hasty perusal to the observations “addressed to the Individual Citizen.” Altho’ I cannot concur in some of them, I may say of all that they merit every praise for the perspicuity, the precision, & the force, with which they are presented to the public attention. You have fallen into a mistake in ascribing the Constitution of Virga. to Mr. Jefferson, as will be inferred from the animadversions on it in his “Notes on Virginia.” Its origin was with George Mason, who laid before the Committee appointed to prepare a plan a very broad outline,1 which was printed by the Come. for consideration, & after being varied on some points & filled up, was reported to the Convention where a few further alterations, gave it the form in which it now stands. The Declaration of rights was subsequently from the same hand. The Preamble to the Constitution was probably derived in great measure if not wholly from the funds of Mr. Jefferson, the richness of which in such materials is seen in the Declaration of Independence as well as elsewhere. The plan of Mr. Jefferson annexed to one of the Editions of his “Notes on Virga” was drawn up after the Revoly war, with a view to correct the faults of the existing Constitution, as well as to obtain the authentic sanction of the people. Your love of truth will excuse this little tribute to it, or rather would not excuse its omission. With esteem & good wishes TO MRS. MADISON2Monticello Friday morning 7. ocl [November, 1824]. We arrived about sunset, just as they were commencing their Desert the Genl had arrived about 3 o’clock with his son & Secrety the last so sick that he went to bed instead of dinner I have not heard how he is this evening, I found here only the General & his family, Col Campbell & Mr. Roane of the Council who will attend him till he goes out of the State & a few of the family. A large crowd had been here, including the individuals appointed to receive the Genrl from Fluvanna & the party escorting him but they did not remain not even Genl Coche to dinner. The Genl does not say yet how many days he stays here. He declines a visit to Staunton & will divide the time not required for the road & the appointed festivities between Mr. Jefferson & myself. It is probable he will not be with us till near or quite the middle of next week He will have with him besides his son & Secrety, the two Councillors & such of the company of Orange meeting, & conducting him as may choose to stop at Montpellier. The Miss Wrights are expected here tomorrow, of Mrs Douglas & her daughters the family here have no notice. The Genl thinks they may make a call as a morning visit only They travel it seems with the Miss Wrights but whether they will precede them in the visit to us is unknown; nor can I learn whether the Miss Wrights will precede, accompany, or follow Genl I may learn more today but not in time to write you. The Genl on finding I had a letter for them proposed to take charge of it & it was given him of course. My old friend embrased me with great warmth, he is in fine health & spirits but so much increased in bulk & changed in aspect that I should not have known him. They are doing their possible at the university to do him honor. We shall set out thither about 9 o’c. I cannot decide till the evening when I shall return, I am not without hope it may be tomorrow. With devoted affection TO FREDERICK BEASLEY.mad. mss.Montpellier, Virginia, Dec. 22, 1824 Revd. Sir,I have just received your letter of the 13th, on its return from Charlottesville, and wish I could gratify you with all the information it asks. In place of it, I can only observe that the System of Polity for the University of Virginia being not yet finally digested & adopted I cannot venture to say what it will be in its precise form and details. It is probable that instead of a President or Provost, as chief magistrate, the superintending & Executive duties, so far as not left to the individual Professors over their respective Classes, will be exercised by the Faculty; the Professors presiding in rotation. This regulation however, as experimental, will be at all times alterable by the Board of Visitors. The Code of discipline will be prepared with the aid of all the lights that can be obtained from the most distinguished Seminaries; and some of the innovations will, not improbably, be in the spirit of your judicious observations. As the University, being such in the full extent of the term, will not contain boys under sixteen years of age, and be chiefly filled by youths approaching to manhood, with not a few perhaps arrived at it there is the better chance for self-government in the students, and for the co-operation of many in giving efficacy to a liberal and limited administration. The peculiarity in the Institution which excited first, most attention & some animadversion, is the omission of a Theological Professorship. The Public Opinion seems now to have sufficiently yielded to its incompatibility with a State Institution, which necessarily excludes sectarian Preferences. The best provision which occurred, was that of authorizing the Visitors to open the Public rooms for Religious uses, under impartial regulations, (a task that may occasionally involve some difficulties) and admitting the establishment of Theological Seminaries by the respective sects contiguous to the precincts of the University, and within the reach of a familiar intercourse distinct from the obligatory pursuits of the Students. The growing Village of Charlottesville also is not distant more than a mile, and contains already Congregations & Clergymen of the sects to which the students will mostly belong. You have already noticed in the public Prints the Scientific Scope of the University, and the resort to Europe for some of the Professors. The reasons for the latter step, you may have also seen in Print; as well as the reduction of the number of chairs in the first instance, by annexing Plural functions to some of them. This was rendered necessary by the limited resources, as yet granted by the Legislature, and will be varied as fast as an augmentation of these will permit, by dividing & subdividing the branches of Science now in the same group. Several of the Professors remain to be appointed; among them one for Mental Philosophy including the branches to which you refer. This has always been regarded by us as claiming an important place in so comprehensive a School of Science. The gentleman in prospect for the station is not yet actually engaged. You seem to have allotted me a greater share in this undertaking than belongs to me. I am but one of seven Managers, and one of many pecuniary benefactors. Mr. Jefferson has been the great projector & the mainspring of it. I am sorry that I have never been able to give the volume you kindly favored me with, the reading it doubtless deserves; and I fear that however congenial the task would be with studies relished at former periods, I shall find it difficult to reconcile it with demands on my time, the decrease of which does not keep pace with the contraction of its remaining span. From several dips into the Treatise I think myself authorized to infer that it embraces a scrutinizing & systematic view of the subject, interesting to the best informed, and particularly valuable to those who wish to be informed. I thank you Sir for the friendly sentiments you have expressed, and beg to accept with my great respect a cordial return of them. TO THOMAS JEFFERSON.mad. mss.Montpellier, Decr 31, 1824. Dear SirI have received yours without date inclosing the letter of Mr. Cabell & your answer. I approve entirely the course you recommend to the friends of the University at Richmond, on the proposed removal of the College at Williamsburg. It would be fortunate if the occasion could be improved for the purpose of filling up the general Plan of Education, by the introduction of the grade of Seminaries between the Primary Schools and the University. I have little hope however that the College will accede to any arrangement which is to take from it a part of its funds, and subject it to the Legislative Authority. And in resisting this latter innovation, it will probably be supported by all the Sectarian Seminaries, tho’ to be adopted as legal establishments of the intermediate grade. It is questionable also whether the sectarian Seminaries would not take side with William & Mary in combating the right of the Public to interfere in any manner with the property it holds. The perpetual inviolability of Charters, and of donations both Public & private, for pious & charitable uses, seems to have been too deeply imprinted on the Public mind to be readily given up. But the time surely cannot be distant when it must be seen by all that what is granted by the Public Authority for the Public good, not for that of individuals, may be withdrawn and otherwise applied, when the Public good so requires; with an equitable saving or indemnity only in behalf of the individuals actually enjoying vested emoluments. Nor can it long be believed that Altho’ the owner of property cannot secure its descent but for a short period even to those who inherit his blood, he may entail it irrevocably and forever on those succeeding to his creed however absurd or contrary to that of a more enlightened Age. According to such doctrines, the Great Reformation of Ecclesiastical abuses in the 16th Century was itself the greatest of abuses; and entails or other fetters attached to the descent of property by legal acts of its owners, must be as lasting as the Society suffering from them. It may well be supposed, Should William & Mary be transplanted to Richmond, that those interested in the City will unite with those partial to the College, and both be reinforced by the enemies of the University, in efforts to aggrandize the former into a Rival of the latter; and that their hopes of success will rest a good deal on the advantage presented at Richmond to Medical Students in the better chance of Anatomic subjects; and in the opportunity of Clinical Lectures; and to Law Students in the presence of the Upper Courts. It will not surprize if some of the most distinguished of the Bar and Bench should take the Lecturing Chair either for profit, or to give an attractive eclât to the regenerated Institution. As the Medical & Law Departments may invite the greatest number of Pupils, and of course be the most profitable to Professors, the obligation on us is the greater to engage for the University conspicuous qualifications for those Chairs. I trust this has been done in the Medical appointment actually made, & hope we shall not be unsuccessful in making the other. In opening the door a little wider for the admission of students of the Ancient Languages, it will be found, I think, that we did well: considering the competition for students that may be encountered, and the importance of filling our Dormitories at an early period. I return the letter of Mr. Cabell, and as your answer may be a fair Copy for your files I return that also. Yours always & affectionately I write a few lines to Govr. Barbour, on the Virga. claim in which the University is interested; tho: it is I believe only applying the spur to a willing steed. [1 ]New Views of the Constitution of the United States. By John Taylor of Caroline, Washington, 1823. Taylor was at this time a Senator from Virginia. [1 ]From the original kindly contributed by Miss Sally J. Newman, “Hilton,” Va. [1 ]On the proposed alteration of the tariff submitted to the consideration of the members of South Carolina in the ensuing Congress. Columbia, 1824. [1 ]Notice of his death arrived before this was sent.—Madison’s Note. Under date February 29, 1824, Cartwright sent Madison his book, England’s Constitution, produced and illustrated.—Mad. MSS. [1 ]The relations between Madison and Livingston which had not been cordial for some years were now amicable. Madison wrote Monroe April 13, 1824: “Mr. Livingston may be assured that I never considered our personal relations to be other than friendly and that I am more disposed to cherish them by future manifestations than to impair them by recollections of any sort.”—Mad. MSS. [1 ]The convention relative to navigation, fishing, and trading in the Pacific and to establishments on the northwest coast between the United States and Russia was concluded April 17, 1824, at St. Petersburg.—Treaties and Conventions, (Ed. 1889), p. 931. [1 ]A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States. Philadelphia, 1824. [1 ]By these the common Law or any other laws may be sanctioned or introduced within the territories or other places subject to the conclusive power of Legislation vested in Congress.—Madison’s Note. [1 ]The list enclosed was as follows:
The Catalogue of Eastburn & Co. New York, particularly the Theological part at the end, deserves attention. Some rare books are found in it, and might probably be bought at cheap prices.—Mad. MSS. [1 ]July, 1826. For a more recollected view of this matter, see an account of the origin & progress of the “Constitution of Virginia,” by J. M. & among his papers.—Madison’s Note. See ante, Vol. I., p. 32. [2 ]From the family papers of the late J. Henley Smith, Esq., of Washington, D. C. When Lafayette arrived Madison wrote to him, August 21, 1824: |
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