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Topic: The American Revolution and Constitution

1825 - TO HENRY LEE. 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 HENRY LEE.mad. mss.

Montpr, January 14, 1825.

I have recd. Sir yours of the 6th inst, and have looked over the printed sheet inclosed in it. Of the literary character of the paper I may express a laudatory opinion, without risk of contravening that of others. As a political disquisition, it embraces questions both of magnitude and of nicety, on which opinions may be various, and of which a critical review does not lie within the compass of a letter, were it permitted by leisure and favoured by the circumstances of the moment.1

The nature & extent of the obligation on a representative to be guided by the known will of his Constituents, though an old question, seems yet to be in a controvertible state. In general it may be said to be often a verbal controversy. That the obligation is not in strictness constitutional or legal, is manifest; since the vote of the Representative is equally valid & operative whether obeying or violating the instruction of his constituents. It can only be a moral obligation to be weighed by the conscience of the Representative, or a prudential one to be enforced by the penal displeasure of his Constituents.

In what degree a plurality of votes is evidence of the will of the Majority of voters, must depend on circumstances more easily estimated in a given case than susceptible of general definition. The greater the number of candidates among whom the votes are divided, the more uncertain, must, of course, be the inference from the plurality with respect to the majority.

In our complex system of polity, the public will, as a source of authority, may be the Will of the People as composing one nation; or the will of the States in their distinct & independent capacities; or the federal will as viewed, for example, thro’ the Presidential Electors, representing in a certain proportion both the Nation & the States. If in the eventual choice of a President the same proportional rule had been preferred, a joint ballot by the two Houses of Congress would have been substituted for the mode which gives an equal vote to every State however unequal in size. As the Constitution stands, and is regarded as the result of a compromise between the larger & smaller States, giving to the latter the advantage in selecting a president from the Candidates, in consideration of the advantage possessed by the former in selecting the Candidates from the people, it cannot be denied whatever may be thought of the Constitutional provision, that there is, in making the eventual choice, no other controul on the votes to be given, whether by the representatives of the smaller or larger States, but their attention to the views of their respective Constituents and their regard for the public good.

You will not forget that the above remarks, being thrown out merely in consequence of your application, are for yourself, not for others. Though penned without the most remote allusion to the particular case before the Public, or even a knowledge of its actual posture & aspects, they might be misconstrued by the propensity of the conjuncture to view things thro’ that medium.

I return the two letters inclosed in yours, which I ought not to do without expressing the high respect I entertain for both the writers; Offering to yourself my wishes for your useful success in whatever line of literature you may finally determine to exercise your talents.

TO THOMAS JEFFERSON.mad. mss.

Montpellier, Feby 8, 1825.

Dear Sir

The letters from Mr Cabell are herein returned. I just see that he has succeeded in defeating the project for removing the College from Williamsburg.

I hope your concurrence in what I said of Mr Barbour will not divert your thoughts from others. It is possible that the drudgery of his profession, the uncertainty of Judicial appointment acceptable to him, and some other attractions at the University for his young family, might reconcile him to a removal thither; but I think the chance slender.

I have looked with attention over your intended proposal of a text book for the Law School. It is certainly very material that the true doctrines of liberty, as exemplified in our Political System, should be inculcated on those who are to sustain and may administer it. It is, at the same time, not easy to find standard books that will be both guides & guards for the purpose. Sidney & Locke are admirably calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a love of free ones; but afford no aid in guarding our Republican Charters against constructive violations. The Declaration of Independence, tho’ rich in fundamental principles, and saying every thing that could be said in the same number of words, falls nearly under a like observation. The “Federalist” may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it. Yet it did not foresee all the misconstructions which have occurred; nor prevent some that it did foresee. And what equally deserves remark, neither of the great rival Parties have acquiesced in all its comments. It may nevertheless be admissible as a School book, if any will be that goes so much into detail. It has been actually admitted into two Universities, if not more—those of Harvard and Rh: Island; but probably at the choice of the Professors, without any injunction from the superior authority. With respect to the Virginia Document of 1799, there may be more room for hesitation. Tho’ corresponding with the predominant sense of the Nation; being of local origin & having reference to a state of Parties not yet extinct, an absolute prescription of it, might excite prejudices against the University as under Party Banners, and induce the more bigoted to withhold from it their sons, even when destined for other than the studies of the Law School. It may be added that the Document is not on every point satisfactory to all who belong to the same Party. Are we sure that to our brethren of the Board it is so? In framing a political creed, a like difficulty occurs as in the case of religion tho’ the public right be very different in the two cases. If the Articles be in very general terms, they do not answer the purpose; if in very particular terms, they divide & exclude where meant to unite & fortify. The best that can be done in our case seems to be, to avoid the two extremes, by referring to selected Standards without requiring an unqualified conformity to them, which indeed might not in every instance be possible. The selection would give them authority with the Students, and might controul or counteract deviations of the Professor. I have, for your consideration, sketched a modification of the operative passage in your draught, with a view to relax the absoluteness of its injunction, and added to your list of Documents the Inaugural Speech and the Farewell Address of President Washington. They may help down what might be less readily swallowed, and contain nothing which is not good; unless it be the laudatory reference in the Address to the Treaty of 1795 with G. B. which ought not to weigh against the sound sentiments characterizing it.

After all, the most effectual safeguard against heretical intrusions into the School of Politics, will be an Able & Orthodox Professor, whose course of instruction will be an example to his successors, and may carry with it a sanction from the Visitors.

Affectionately yours.

Sketch.

And on the distinctive principles of the Government of our own State, and of that of the U. States, the best guides are to be found in—1. The Declaration of Independence, as the fundamental act of Union of these States. 2. the book known by the title of the “Federalist,” being an Authority to which appeal is habitually made by all & rarely declined or denied by any, as evidence of the general opinion of those who framed & those who accepted the Constitution of the U. States on questions as to its genuine meaning. 3. the Resolutions of the General Assembly of Virga in 1799, on the subject of the Alien & Sedition laws, which appeared to accord with the predominant sense of the people of the U. S. 4. The Inaugural Speech & Farewell Address of President Washington, as conveying political lessons of peculiar value; and that in the branch of the School of law which is to treat on the subject of Govt., these shall be used as the text & documents of the School.

TO NICHOLAS BIDDLE.chic. hist. soc. mss.

Montpr. near O. C. H. Ap. 16. 25

Dear Sir

Such has been of late years the unfavorableness of the seasons for the staple productions in this quarter, and of the markets also for the main one, and such the disappointment in collecting debts on which I counted, that I find it necessary to resort either to a moderate loan or to a sale of property, which at the present juncture would be made to great disadvantage. The first alternative is of course preferable, the rather as the last, if not finally avoided, is more likely to be alleviated than made worse by delay.

On the ground thus explained, I would ask the favor of you to say whether it be consistent with the views of the Bank of the U. S. to give me a credit for a sum not exceeding six thousand dollars, at the lowest allowable rate of interest; and if so, with what indulgence as to the period or periods for repaying the principal. It is proper to add that for making the Bank secure, real estate of ample amount and without flaw or incumbrance of any sort will be pledged in whatever form may be prescribed.

Should this application be successful may I ask as a further favor that your answer may be accompanied or followed by the documents to be executed on my part, prepared according to the requites of the Bank. I may find it convenient to draw for a part of the fund as soon as the arrangements will permit.1

TO BENJAMIN WATERHOUSE.mad. mss.

Montpr. July 13, 1825.

Dr Sir

I have recd your friendly letter of June 30, and congratulate you on your safe return from so long a journey. The fact you confirm with respect to Gen: Hull furnishes the best apology for the imbecility which occasioned his downfall; and his friends would shew more discretion in availing themselves of it, than in attempts to decorate him with artificial laurels. I am truly sorry for the injury sustained by our friend, Genl Dearborn; whose character forms such a contrast to that of the Mock Hero of Detroit.1 I hope, as I am sure you wish, that your ominous inferences may be followed by a proof that his case is an exception to the general rule which suggested them.

You ask whether you are too old or too deficient in political information for public service abroad. To the latter question, none, I presume would say no; and, judging from what I have seen, I could not give a different answer to the former. If there be precedents of an adverse sort, there are so many on the favorable side, that every individual case ought at least to be decided on its own merits. In such an appeal, you will doubtless find better testimony than mine, in those more free from a suspicion of chronological sympathies with three score and ten.

Mrs M. desires me to express for her the respectful & cordial sentiments with which your interesting conversations inspired her, and to include her in all the good wishes, which I tender you with the assurances of my great esteem.

TO FRANCES WRIGHT.mad. mss.

Montpellier Sepr 1, 1825.

Dear Madam

Your letter to Mrs. Madison, containing observations addressed to my attention also, came duly to hand, as you will learn from her, with a printed copy of your plan for the gradual abolition of slavery in the U. States.

The magnitude of this evil among us is so deeply felt, and so universally acknowledged, that no merit could be greater than that of devising a satisfactory remedy for it. Unfortunately the task, not easy under any other circumstances, is vastly augmented by the physical peculiarities1 of those held in bondage, which preclude their incorporation with the white population; and by the blank in the general field of labour to be occasioned by their exile; a blank into which there would not be an influx of white labourers, successively taking the place of the exiles, and which, without such an influx, would have an effect distressing in prospect to the proprietors of the soil.

The remedy for the evil which you have planned is certainly recommended to favorable attention by the two characteristics, 1. that it requires the voluntary concurrence of the holders of the slaves with or without pecuniary compensation: 2 that it contemplates the removal of those emancipated, either to a foreign or distant region: And it will still further obviate objections, if the experimental establishments should avoid the neighbourhood of settlements where there are slaves.

Supposing these conditions to be duly provided for, particularly the removal of the emancipated blacks, the remaining questions relate to the aptitude & adequacy of the process by which the slaves are at the same time to earn the funds, entire or supplemental, required for their emancipation & removal; and to be sufficiently educated for a life of freedom and of social order.

With respect to a proper course of education no serious difficulties present themselves. And as they are to continue in a state of bondage during the preparatory period, & to be within the jurisdiction of States recognizing ample authority over them, a competent discipline cannot be impracticable. The degree in which this discipline will enforce the needed labour, and in which a voluntary industry will supply the defect of compulsory labour, are vital points on which it may not be safe to be very positive without some light from actual experiment.

Considering the probable composition of the labourers, & the known fact that where the labour is compulsory, the greater the number of labourers brought together (unless indeed where a co-operation of many hands is rendered essential by a particular kind of work or of machinery) the less are the proportional profits, it may be doubted whether the surplus from that source merely beyond the support of the establishment, would sufficiently accumulate in five or even more years, for the objects in view. And candor obliges me to say that I am not satisfied either that the prospect of emancipation at a future day will sufficiently overcome the natural and habitual repugnance to labour, or that there is such an advantage of united over individual labour as is taken for granted.

In cases where portions of time have been allotted to slaves, as among the Spaniards, with a view to their working out their freedom, it is believed that but few have availed themselves of the opportunity, by a voluntary industry; And such a result could be less relied on in a case where each individual would feel that the fruit of his exertions would be shared by others whether equally or unequally making them; and that the exertions of others would equally avail him, notwithstanding a deficiency in his own. Skilful arrangements might palliate this tendency, but it would be difficult to counteract it effectually.

The examples of the Moravians, the Harmonites and the Shakers in which the United labors of many for a common object have been successful, have no doubt an imposing character. But it must be recollected that in all these Establishments there is a religious impulse in the members, and a religious authority in the head, for which there will be no substitutes of equivalent efficacy in the Emancipating establishment. The code of rules by which Mr. Rap manages his conscientious & devoted flock, & enriches a common treasury, must be little applicable to the dissimilar assemblage in question.1 His experience may afford valuable aid, in its general organization, and in the distribution & details of the work to be performed: But an efficient administration must, as is judiciously proposed, be in hands practically acquainted with the Propensities & habits of the members of the new Community.

With a reference to this dissimilarity & to the doubt as to the advantages of associated labour, it may deserve consideration whether the experiment would not be better commenced on a scale smaller than that assumed in the prospectus. A less expensive outfit would suffice; labourers in the proper proportions of sex & age would be more attainable; the necessary discipline, and the direction of their labour would be more simple & manageable; and but little time would be lost; or perhaps time gained, as success, for which the chance would according to my calculation be increased, would give an encouraging aspect to the plan, and suggest improvements better qualifying it for the larger scale proposed.

Such, Madam are the general ideas suggested by your interesting communication. If they do not coincide with yours, & imply less of confidence than may be due to the plan you have formed, I hope you will not question either my admiration of the generous philanthropy which dictated it, or my sense of the special regard it evinces for the honor & welfare of our expanding, & I trust rising Republic.

As it is not certain what construction would be put on the view I have taken of the subject, I leave it with your discretion to withhold it altogether, or to disclose it within the limits, you allude to; intimating only that it will be most agreeable to me on all occasions not to be brought before the Public, where there is no obvious call for it.

General Lafayette took his final leave of us a few days ago, expecting to embark about this time in the new frigate with an appropriate name. He carries with him the unanimous blessings of the free nation which has adopted him. If equal honors have not been his portion in that in which he had his birth, it is not because he did not deserve them. This hemisphere at least, & posterity in the other, will award what is due to the nobleness of his mind and the grandeur of his career.

He could add but little to the details explained in the Printed copy of the Abolition Plan, for want of a full knowledge of which justice may not have been done it. Mr. Davis has not yet favoured us with the promised call. I shall receive his communications on the subject, with attention & pleasure.

The date of this letter will shew some delay in acknowledging the favor of yours. But it is expected to be at Nashville by the time noted for your arrival there, and a prolonged stay in the post office was rather to be avoided than promoted.

I join Mrs. M. in the hope that we shall not be without the opportunity of again welcoming you & your sister to Montpr. tendering you in the mean time my respectful salutations.

TO FREDERICK BEASLEY.mad. mss.

Montpellier, Novr 20, 1825.

Dear Sir

I have duly recd. the copy of your little tract on the proofs of the Being & Attributes of God.1 To do full justice to it, would require not only a more critical attention than I have been able to bestow on it, but a resort to the celebrated work of Dr. Clarke, which I read fifty years ago only, and to that of Dr Waterland also which I never read.

The reasoning that could satisfy such a mind as that of Clarke, ought certainly not to be slighted in the discussion. And the belief in a God All Powerful wise & good, is so essential to the moral order of the World & to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters & capacities to be impressed with it.

But whatever effect may be produced on some minds by the more abstract train of ideas which you so strongly support, it will probably always be found that the course of reasoning from the effect to the cause, “from Nature to Nature’s God,” Will be the more universal & more persuasive application.

The finiteness of the human understanding betrays itself on all subjects, but more especially when it contemplates such as involve infinity. What may safely be said seems to be, that the infinity of time & space forces itself on our conception, a limitation of either being inconceivable; that the mind prefers at once the idea of a self-existing cause to that of an infinite series of cause & effect, which augments, instead of avoiding the difficulty; and that it finds more facility in assenting to the self-existence of an invisible cause possessing infinite power, wisdom & goodness, than to the self-existence of the universe, visibly destitute of those attributes, and which may be the effect of them. In this comparative facility of conception & belief, all philosophical Reasoning on the subject must perhaps terminate. But that I may not get farther beyond my depth, and without the resources which bear you up in fathoming efforts, I hasten to thank you for the favour which has made me your debtor, and to assure you of my esteem & my respectful regards

TO THOMAS RITCHIE.mad. mss.

Montpellier, Decr. 18, 1825.

Dear Sir

Yours of the 10th inst: was recd a few days ago & I give it the earliest answer which circumstances have permitted.

It has been impossible not to observe the license of construction applied to the Constitution of the U. States; and that the premises from which powers are inferred, often cover more ground than inferences themselves.

In seeking a remedy for these aberrations, we must not lose sight of the essential distinction, too little heeded, between assumptions of power by the General Government, in opposition to the Will of the Constituent Body, and assumptions by the Constituent Body through the Government as the Organ of its will. In the first case, nothing is necessary but to rouse the attention of the people, and a remedy ensues thro’ the forms of the Constitution. This was seen when the Constitution was violated by the Alien and Sedition Acts. In the second case, the appeal can only be made to the recollections, the reason, and the conciliatory spirit of the Majority of the people agst. their own errors; with a persevering hope of success, and an eventual acquiescence in disappointment unless indeed oppression should reach an extremity overruling all other considerations. This second case is illustrated by the apparent call of a majority of the States & of the people for national Roads & Canals; with respect to the latter of which, it is remarkable that Mr. Hamilton, himself on an occasion when he was giving to the text of the Constitution its utmost ductility, (see his Report on the Bank) was constrained to admit that they exceeded the authority of Congress.

All power in human hands is liable to be abused. In Governmts. independent of the people, the rights & interests of the whole may be sacrificed to the views of the Governmt. In Republics, where the people govern themselves, and where of course the majority Govern, a danger to the minority, arises from opportunities tempting a sacrifice of their rights to the interests real or supposed of the Majority. No form of Govt. therefore can be a perfect guard agst. the abuse of Power. The recommendation of the Republican form is that the danger of abuse is less than in any other; and the superior recommendation of the federo-Republican system is, that whilst it provides more effectually against external danger, it involves a greater security to the minority against the hasty formation of oppressive majorities.

These general observations lead to the several questions you ask as to the course which, in the present state of things, it becomes Virginia to pursue.

1. “Ought an amendment of the Constitution, giving to Congress a Power as to Roads & Canals, to be proposed on her part; and what part taken by her if proposed from any other quarter?”

Those who think the power a proper one, and that it does not exist, must espouse such an amendment; and those who think the power neither existing nor proper, may prefer a specific grant forming a restrictive precedent, to a moral certainty of an exercise of the power, furnishing a contrary precedent. Of the individual ways of thinking on this point, you can probably make a better estimate than I can.

2. “Ought a proposed amendment to comprize a particular guard agst. the sweeping misconstruction of the terms, ‘common defence and general welfare.’ ”

The wish for such a guard is natural. But the fallacious inferences from a failure however happening, would seem to require for the experiment a very flattering prospect of success. As yet the unlimited power expressed by the terms, if disjoined from the explanatory specifications, seems to have been claimed for Congress rather incidentally & unimpressively, than under circumstances indicating a dangerous prevalence of the heresy. Gov. Van Ness alone appears to have officially adopted it; and possibly with some unexpressed qualification. Has not the Supreme Court of the U. S. on some occasion disclaimed the import of the naked terms as the measure of Congressional authority? In general the advocates of the Road & Canal powers, have rested the claim on deductions from some one or more of the enumerated grants.

The doctrine presenting the most serious aspect is that which limits the claim to the mere “appropriation of money” for the General Welfare. However untenable or artificial the distinction may be, its seducing tendencies & the progress made in giving it a practical sanction, render it pretty certain that a Constitutional prohibition is not at present attainable; whilst an abortive attempt would but give to the innovation a greater stability. Should a specific amendment take place on the subject of roads & canals, the zeal for this appropriating power would be cooled by the provision for the primary & popular object of it; at the same time that the implied necessity of the amendment would have a salutary influence on other points of Construction.

3. “Ought Virga. to protest agst. the Power of internal improvement by Roads & Canals; with an avowal of readiness to acquiesce in a decision agst. her by ¾ of her Sister States?”

By such a decision is understood a mere expression of concurrent opinions by ¾ of the State Legislatures. However conciliatory the motives to such a proposition might be, it could not fail to be criticised as requiring a surrender of the Constitutional rights of the majority in expounding the Constitution, to an extra Constitutional project of a protesting State. May it not be added that such a test, if acceded to, would, in the present state of Public Opinion, end in a riveting decision against Virginia?

Virginia has doubtless a right to manifest her sense of the Constitution, and of proceedings under it, either by protest or other equivalent modes. Perhaps the mode as well suited as any to the present occasion, if the occasion itself be a suitable one, would be that of instructions to her Representatives in Congs to oppose measures violating her constructions of the Instrument; with a preamble appealing, for the truth of her constructions to the contemporary expositions by those best acquainted with the intentions of the Convention which framed the Constitution; to the Debates & proceedings of the State Conventions which ratified it; to the universal understanding that the Govt. of the Union was a limited not an unlimited one; to the inevitable tendency of the latitude of construction in behalf of internal improvements, to break down the barriers against unlimited power; it being obvious that the ingenuity which deduces the authority for such measures, could readily find it for any others whatever; and particularly to the inconclusiveness of the reasoning from the sovereign character of the powers vested in Congs., and the great utility of particular measures, to the rightful exercise of the powers required for such measures; a reasoning which however applicable to the case of a single Govt. charged with the whole powers of Govt. loses its force in the case of a compound Govt. like that of the U. S., where the delegated sovereignty is divided between the General & the State Govts; where one sovereignty loses what the other gains; and where particular powers & duties may have been withheld from one, because deemed more proper to be left with the other.

I have thrown out these hasty remarks more in compliance with your request than from a belief that they offer anything new on the beaten subject. Should the topics touched on be thought worthy on any account of being publicly developed, they will be in hands very competent to the task. My views of the Constitutional questions before the public are already known as far as they can be entitled to notice, and I find myself every day more indisposed, and, as may be presumed, less fit, for reappearance on the political Arena.

TO THOMAS JEFFERSON.mad. mss.

Montpr., Decr 28, 1825.

Dear Sir

I recd. yesterday evening yours of the 24th inst: inclosing a paper drawn up with a view to the question of “Roads & Canals,” and to the course of proceeding most expedient for the Legislature of Virga, now in session.1

In my retired position it is difficult to scan the precise tendency of measures addressed to the opinions & feelings of the States & of their Representatives; these being imperfectly understood, and continually undergoing also more or less of modifications. In general, I have doubted the policy of any attempt by Virginia to take the lead, or the appearance of it, in opposing the obnoxious career of Congress, or, rather of their Constituents; considering the prejudices which seem to have been excited of late agst her. And the doubt is now strengthened, by the diversity of opinion apparently taking place among her opponents, which if not checked by interpositions on her part, may break the Phalanx with which she has to deal. Hitherto the encroachments of Congress have not proceeded far enough to rouse the full attention of some of the States; who tho’ not opposing the limited expence of Surveying Engineers, or the productive subscriptions to projected improvements by particular States, will unite with Virginia in combating the exercise of Powers which must not only interfere with their local jurisdictions, but expend vast sums of money, from which their share of benefit, would not be proportioned to their share of the burden. To this consideration I refer the recent proposition of Mr. Bailey. It may have had in part, the motives you allude to. But it can be explained by the local calculations under its surface. The members of Congs from N. England have never been entirely united on the subject of National Canals &c. and altho’ sundry projects of that sort have lately appeared in that quarter as elsewhere, it is probable that most of them will be found either impracticable, or threatening changes in the channels of trade causing them to be abandoned. It is pretty certain that the progress made by N. England in her internal improvements reduces her interest in the prosecution of them with the national revenue, below her contributions to it, or her portion of a dividend from it. The remark is applicable to the weighty State of N. York, where the power assumed by Congress has always been viewed with a degree of jealousy, and where I believe a decided opposition would be made agst. a claim that wd touch her soil or introduce a jurisdiction over it, without the express consent of the State. Her Senator Van Buren, it appears, has already taken up the subject, and no doubt with a purpose of controuling the assumed power. The progress made by other States in like improvements under their own authority, may be expected to enlist some of them on the same side of the question. Were Congress indeed possessed of the undisputed power in the case, it would be a problem, whether it would not be Paralysed by the difficulty of adapting a system of Roads & Canals to the diversified situations of the States, and of making a satisfactory apportionment of the benefits & burdens among them. As this is a view of the subject however not likely to quiet the apprehensions which prevail, and might yield to fuller information with regard to it, I should suppose Virginia would find an eligible compromise in Mr. Bailey’s project; notwithstanding the bearing it may have in favor of a prolonged tariff, as the nurse of the manufacturing system. It may be well at least to know the weakness of the proposition in and out of Congress, before any irrevocable decision be had at Richmond.

Should any strong interposition there be ultimately required, your paper will be a valuable resort. But I must submit to your consideration whether the expedient with which it closes of enacting statutes of Congress into Virginia Statutes, would not be an anomaly without any operative character, besides the objection to a lumping and anticipating enactment. As the Acts in question would not be executed by the ordinary functionaries of Virga., and she could not convert the federal into State functionaries, the whole proceeding would be as exclusively under the federal authority as if the legislative interference of Virga. had not taken place; her interference amounting to nothing more than a recommendation to her Citizens to acquiesce in the exercise of the power assumed by Congress, for which there is no apparent necessity or obligation.

Previous to the rect of your communication, a letter from Mr. Ritchie, marked with all his warm feelings, on the occasion, made a pressing call for my opinions and advice. I inclose it with my answer, in which you will see the course which occurred to me as most eligible or least questionable; Bailey’s proposition being at the time unknown. I was apprehensive that encouragement to a stronger course, in the present stage of the business & temper of the Assembly might lead to a stile & tone irritating rather than subduing prejudices, instead of the true policy as well as dignity of mingling as much of molliter in modo, as would be consistent with the fortiter in re. Whilst Congress feel themselves backed by a Majority of their Constituents, menace or defiance, will never deter them from their purposes; particularly when such language proceeds from the section of the Union, to which there is a habit of alluding as distinguished by causes of internal weakness.

You asked an early answer & I have hurried one, at the risk of crudeness in some of its views of the subject. If there be errors, they can do no harm when under your controul.

Health and all other good wishes

REMARKS ON AN EXTRACT FROM HAMILTON’S REPORT PUBLISHED IN THE RICHMOND ENQUIRER.mad. mss.

In the Richmond Enquirer of the 21st is an Extract from the Report of Secretary Hamilton, on the Constitutionality of the Bank, in which he opposes a resort, in expounding the Constitution, to the rejection of a proposition in the Convention, or to any evidence extrinsic to the text.1 Did he not advise, if not draw up, the Message refusing to the House of Reps. the papers relating to Jay’s Treaty, in which President Washington combats the right of their Call by appealing to his personal knowledge of the intention of the Convention, having been himself a member of it, to the authority of a rejected proposition appearing on the Journals of the Convention, and to the opinions entertained in the State Conventions? Unfortunately the President had forgotten his sanction to the Bank, which disregarded a rejected proposition on that subject. This case too was far more in point, than the proposition in that of the Treaty papers. Whatever may be the degree of force in some of the remarks of the Secretary, he pushes them too far. But the contradictions between the Report & the message are palpable.

January 25, 1826,

[1 ]The House of Representatives was about to vote for the candidates for the Presidency and elected John Quincy Adams over Crawford and Jackson, on February 9th.

[1 ]Biddle was then President of the United States Bank. He replied April 26th that the bank had adopted a rule forbidding the advance of money on real estate for indeterminate periods.

[1 ]The apoplectic attack & its effect as related by Dr Waterhouse should be extracted from his letter and accompany this—Madison’s Note. Waterhouse wrote June 30th from Cambridge:

“You may have seen in the papers that the miserable General H[ull] has been treated with a public dinner; at which presided a son of the late worthy Govr. Sullivan, and nephew to the General—a degenerate plant of a strange (foreign) vine—the bitterest, & most inveterate of the whole high-federal gang—a man notorious for having dishonored his Father and his Mother, and who had doubtless congenial feelings with the military convict.

“I mentioned that Hull had a stroke of apoplexy, a year, perhaps, before his appointment of General on the Canada expedition. I have refreshed my memory since I came home, and therefore repeat, that a few miles from my house, at a review of the Middlesex militia, whereof the late Speaker General Varnum was commanding officer, General Hull fell senseless, and, if I recollect rightly, was carried home in that condition; from which time, he never appeared to be the man he was before, insomuch that I remember people spoke of it, when his appointment was announced.—The gallant General Miller called on me yesterday when we refreshed each other’s memories on the events of Hull.”—Mad. MSS.

[1 ]These peculiarities, it wd. seem are not of equal force in the South American States, owing in part perhaps to a former degradation produced by colonial vassalage, but principally to the lesser contrast of colours. The difference is not striking between that of many of the Spanish & Portuguese Creoles & that of many of the mixed breed.—Madison’s Note. Miss Wright’s pamphlet was A Plan for the gradual abolition of Slavery in the United States without danger or loss to the Citizens of the South, Baltimore, 1825.

[1 ]George Rapp, founder of the sect of Harmonists or Harmonites.

[1 ]Vindication of the Argument a priori in Proof of the Being and Attributes of God, from the Objection of Dr. Waterland.

[1 ]The paper was the draft of a protest drawn up by Jefferson with a view to its adoption by the Virginia assembly. Jefferson’s Writings (P. L. Ford), xii., 418 n.

[1 ]The extract was as follows:

“The Secretary of State will not deny that, whatever may have been the intentions of the framers of a constitution or of a law; that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and effect more or less than was intended. If, then, a power to erect a corporation in any case, be deducible by fair inference from the whole, or any part, of the numerous provisions of the constitution of the U. States, arguments drawn from extrinsic circumstances regarding the intention of the convention, must be rejected.”

Washington’s message of March 24, 1796, said:

“Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject. . . .

“There is also reason to believe that this construction agrees with the opinions entertained by the State Conventions, when they were deliberating on the Constitution. . . .

“If other proofs than these, and the plain letter of the Constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made ‘that no treaty should be binding on the United States which was not ratified by a law,’ and that the proposition was explicitly rejected.”—Annals of Cong., 4th Cong., 1st Sess., p. 761.