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Topic: The American Revolution and Constitution

1829 - TO JOHN QUINCY ADAMS. 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 JOHN QUINCY ADAMS.mad. mss.

Montpr., Feby 24, 1829.

Dear Sir,—

I have recd. in your kind letter of the 21st instant, the little pamphlet containing the correspondence between yourself and “several citizens of Massachusetts,” with “certain additional papers.”1

The subjects presented to view by the pamphlet will doubtless, not be overlooked in the history of our country. The Documents not previously published are of a very interesting cast. The letter of Govr. Plumer, particularly, if nowise impaired by adverse authority, must receive a very marked attention and have a powerful effect.

As what relates to Col: Hamilton, however, is stated on a solitary information only, I cannot but think there may be some material error at the bottom of it. That the leading agency of such a man, & from a State in the position of New York, should, in a project for severing the Union, be anxiously wished for by its authors is not to be doubted; and an experimental invitation of him to attend a select meeting may without difficulty, be supposed. But obvious considerations oppose a belief that such an invitation would be accepted; and if accepted, the supposition would remain, that his intention might be to dissuade his party & personal friends, from a conspiracy as rash as wicked and as ruinous to the party itself as to the country. The lapse of time must have extinguished lights by which alone the truth in many cases could be fully ascertained. It is quite possible that this may be found an exception. I pray you Sir, to accept a renewed assurance of my esteem and my best wishes.

TO JOSEPH C. CABELL.mad. mss.

Montpellier, Augt 16, 1829.

Dear Sir,—

Your letter of the 5th found me under a return of indisposition which has not yet left me.1 To this cause you must ascribe the tardiness of my attention to it.

Your speech with the accompanying notes and documents will make a very interesting and opportune publication. I think with Mr. Johnson that your view of the Virginia doctrine in 98-99 is essentially correct and easily guarded against any honest misconstructions. I have pencilled a very few interlineations and erasures, (easily removed if not approved) having that object. I wish you to revise them with an eye to the language of Virginia in her proceedings of that epoch, happening to be without a remaining copy of them. I make the same request as to my remarks below, involving a reference to those proceedings. As to the two paragraphs in brackets, disliked by Mr. J. I am at some loss what to say. Tho’ they may certainly be spared without leaving a flaw, the first of them, at least, is so well calculated to rescue the authority of Mr. Jefferson on the constitutionality of the Tariff, from the perverted and disrespectful use made of it, that I should hesitate in advising a suppression of it.

On the subject of an Arbiter or Umpire, it might not be amiss, perhaps, to note at some place, that there can be none, external to the U. S. more than to individual States; nor within either, for those extreme cases, or questions of passive obedience & non-resistence, which justify and require a resort to the original rights of the parties to the compact. But that in all cases, not of that extreme character, there is an Arbiter or Umpire, as within the Governments of the States, so within that of the U. S. in the authority constitutionally provided for deciding, controversies concerning boundaries of right and power. The provision in the U. S. is particularly stated in the Federalist, No 39, pa. 241, Gideon’s edn.

The tonnage and other duties for encouraging navigation are, in their immediate operation, as locally partial to Northern Ship-owners, as a tariff on particular imports is partial to Northern manufacturers. Yet, South Carolina his uniformly favored the former as ultimately making us independent of foreign navigation, and, therefore, in reality of a National character. Ought she not in like manner, to concur in encouraging manufactures, tho’ immediately partial to some local interests, in consideration of their ultimate effect in making the Nation independent of foreign supplies; provided the encouragement be not unnecessarily unequal in the immediate operation, nor extended to articles not within the reason of the policy?

On comparing the doctrine of Virginia in 98-99, with that of the present day in S. C. will it not be found that Virginia asserted that the States, as parties to the Constitutional compact, had a right and were bound, in extreme cases only, and after a failure of all efforts for redress under the forms of the Constitution, to interpose in their sovereign capacity, for the purpose of arresting the evil of usurpation, and preserving the Constitution and Union: Whereas the doctrine of the present day in S. C. asserts that in a case of not greater magnitude than the degree of inequality in the operation of a tariff in favor of manufactures, she may of herself finally decide, by virtue of her sovereignty, that the Constitution has been violated; and that if not yielded to by the Federal Government, tho’ supported by all the other States, she may rightfully resist it and withdraw herself from the Union.

Is not the resolution of the Assembly at their last Session against the Tariff a departure from the ground taken at the preceding session? If my recollection does not err, the power of Congress, to lay imposts, was restricted at this session, to the sole case of revenue. Their late resolution denies it only in the case of manufactures, tacitly admitting, according to the modifications of S. Carolina, tonnage duties, and duties counteracting foreign regulations. If the inconsistency be as I suppose, be so good as to favor me with a transcript of the Resolutions of the penult session.1 Your letter returning those borrowed was duly received some time ago.

TO THOMAS S. HINDE.mad. mss.

Montpr Aug. 17 1829.

Dear Sir,—

Your letter of July 23 was duly recd but at a time when I was under an indisposition, remains of which are still upon me. I know not whence the error originated that I was engaged in writing the history of our Country. It is true that some of my correspondences during a prolonged public life, with other manuscripts connected with important public transactions, are on my files, and may contribute materials for a historical pen. But a regular history of our Country, even during its Revolutionary & Independent character, would be a task forbidden by the age alone at which I returned to private life, and requiring lights on various subjects, wch. are gradually to be drawn from sources not yet opened for public use. The friendly tone of your letter has induced me to make these explanatory remarks; which being meant for yourself only, I must request may be so considered.

The authentic facts which it appears you happen to possess relating to the criminal enterprise in the west during the administration of Mr. Jefferson, must merit preservation as belonging to a history of that period; and if no repository more eligible occurs to you, a statement of them may find a place among my political papers. The result of that enterprise is among the auspicious pledges given by the genius of Republican institutions & the spirit of a free people, for future triumphs over dangers of every sort that may be encountered in our national career.

I cannot be insensible to the motives which prompted the too partial views you have taken of my public services; and which claim from me the good wishes which I tender you.

TO JOSEPH C. CABELL.mad. mss.

Montpr Septr 7 1829.

Dear Sir,—

I recd. on the evening of Friday your two letters of Augt 30 & Sepr 1, with the copy of the Virga. proceedings in 98-99, and the letters of “Hampden.”

When I looked over your manuscript pamphlet. lately returned to you, my mind did not advert to a discrepancy in your recorded opinions, nor to the popularity of the rival jurisdiction claimed by the Court of Appeals. Your exchange of a hasty opinion for one resulting from fuller information & matured reflection, might safely defy animadversion. But it is a more serious question how far the advice of the two friends you have consulted, founded on the unanimous claim of the Court having Judge Roane at its head, ought to be disregarded; or how far it might be expedient in the present temper of the Country, to mingle that popular claim wth. the Tariff heresy, which is understood to be tottering in the public opinion, & to which your observations & references are calculated to give a very heavy blow. It were to be wished that the two Judges [Cabell & Coalter] cou’d read your manuscript, and then decide on its aptitude for public use. Would it be impossible so to remould the Essay as to drop what might be offensive to the opponents of the necessary power of the Supreme Court of the U. States, but who are sound as to the Tariff power; retaining only what relates to the Tariff; or, at most, to the disorganizing doctrine which asserts a right in every State to withdraw itself from the Union. Were this a mere league, each of the parties would have an equal right to expound it; and of course there would be as much right in one to insist on the bargain, as in another to renounce it. But the Union of the States is, according to the Virga. doctrine in 98-99, a Constitutional Union; and the right to judge in the last resort, concerning usurpations of power, affecting the validity of the Union, referred by that doctrine to the parties to the compact. On recurring to original principles, and to extreme cases, a single State might indeed be so oppressed as to be justified in shaking off the yoke; so might a single county of a State be, under an extremity of oppression. But until such justifications can be pleaded, the compact is obligatory in both cases. It may be difficult to do full justice to this branch of the subject, without involving the question between the State and Federal Judiciaries: But I am not sure that the plan of your pamphlet will not admit a separation. On this supposition, it might be well, as soon as the Tariff fever shall have spent itself, to take up both the Judicial & the anti-union heresies; on each of which you will have a field for instructive investigation, with the advantage of properly connecting them in their bearings. ☞ A political system that does not provide for a peaceable and effectual decision of all controversies arising among the parties is not a Government, but a mere Treaty between independent nations, without any resort for terminating disputes but negotiation, and that failing, the sword. That the system of the U. States, is what it professes to be, a real Governt and not a nominal one only, is proved by the fact that it has all the practical attributes & organs of a real tho’ limited Govt.; a Legislative, Executive, & Judicial Department, with the physical means of executing the particular authorities assigned to it, on the individual citizens, in like manner as is done by other Governts. Those who would substitute negociation for Governmental authority, and rely on the former as an adequate resource, forget the essential difference between disputes to be settled by two Branches of the same Govt. as between the House of Lords & Commons in England, or the Senate & H. of Representatives here; and disputes between different Govts. In the former case, as neither party can act without the other, necessity produces an adjustment. In the other case, each party having in a Legislative, Executive, & Judicial Department of its own, the compleat means of giving an independent effect to its will, no such necessity exists; and physical collisions are the natural result of conflicting pretensions.

In the years 1819 & 1821, I had a very cordial correspondence with the author of “Hampden” & “Algernon Sydney,” [Judge Roane.]1 Although we agreed generally in our views of certain doctrines of the Supreme Court of the U. S. I was induced in my last letter to touch on the necessity of a definitive power on questions between the U. S. and the individual States, and the necessity of its being lodged in the former, where alone it could preserve the essential uniformity. I received no answer, which, indeed, was not required, my letter being an answer.

I shall return the printed pamphlet as soon as I have read the letters of “Hampden” making a part of it.

I have not the acts of the Sessions in question; & will thank you, when you have the opportunity to examine the Preambles to the polemic Resolutions of the Assembly, & let me know whether or not they present an Inconsistency. If I mistake not, Governor Tylers message emphatically denounced all imposts on commerce not exclusively levied for the purposes of revenue.

I return the letter of Mr. Morris, inclosed in yours recd. some time ago. Mr. Pollard ought to have been at no loss for my wish to ascertain the authorship of “The danger not over,” the tendency, if not the object of the republication, with the suggestion that I had a hand in the paper, being to shew an inconsistency between my opinion then & now on the subject of the Tariff power. It may not be amiss to receive the further explanations of Mr. Pollard. But I learn from Mr. Robert Taylor, who was a student of law at the time with Mr. Pendleton, that he saw a letter to him from Mr. Jefferson expressing a desire that he would take up his pen at the crisis; but without, as Mr. Taylor recollects, furnishing any particular ideas for it, or naming me on the occasion. I believe a copy of the letter is among Mr. Jefferson’s papers, and that it corresponds with Mr. T’s account of it.

I comply with your request to destroy your two letters; and, as this has been written in haste and with interruptions of company, it will be best disposed of in the same way. Some of the passages in it called for more consideration & precision than I could bestow on them.

P. S. Since the above was written, I have recd. yours of the 3d. inst. There could not be a stronger proof of the obscurity of the passage it refers to than its not being intelligible to you. Its meaning is expressed in the slip of paper inclosed. The passage may be well eno’ dispensed with, as being developed in that marked above by.☞

Copy of the slip: Note that there can of course be no regular Arbiter or Umpire, under any Governmental system, applicable to those extreme cases, or questions of passive obedience & non-resistence, which justify & require a resort to the original rights of the parties to the system or compact; but that in all cases not of that extreme character, there is & must be an Arbiter or Umpire in the constitutional authority provided for deciding questions concerning the boundaries of right & power. The particular provision, in the Constitution of the U. S. is in the authority of the Supreme Court, as stated in the “Federalist,” No. 39.

OUTLINE.mad. mss.

Sepr. 1829.

The compound Govt of the U. S. is without a model, and to be explained by itself, not by similitudes or analogies. The terms Union, Federal, National not to be applied to it without the qualifications peculiar to the system. The English Govt is in a great measure sui generis, and the terms Monarchy used by those who look at the executive head only, and Commonwealth, by those looking at the representative member chiefly, are inapplicable in a strict sense.

A fundamental error lies in supposing the State Governments to be the parties to the Constitutional compact from which the Govt. of the U. S. results.

It is a like error that makes the General Govt. and the State governments the parties to the compact, as stated in the 4th letter of “Algernon Sidney,” [Judge Roane]. They may be parties in a judicial controversy, but are not so in relation to the original constitutional compact.

In No. XI of “Retrospects,” [by Govr. Giles], in the Richmond Enquirer of Sept. 8, 1829, Mr. Jefferson is misconstrued, or rather mistated, as making the State Govts & the Govt of the U. S. foreign to each other; the evident meaning, or rather the express language of Mr. J, being “the States are foreign to each other, in the portions of sovereignty not granted, as they were in the entire sovereignty before the grant,” and not that the State Govts. and the Govt. of the U. S. are foreign to each other. As the State Govts participate in appointing the Functionaries of the Genl. Govt. it can no more be said that they are altogether foreign to each other, than that the people of a State & its Govt. are foreign.

The real parties to the constl. compact of the U. S. are the States—that is, the people thereof respectively in their sovereign character, and they alone, so declared in the Resolutions of 98, and so explained in the Report of 99. In these Resolutions as originally proposed, the word alone, wch. guarded agst. error on this point, was struck out, [see printed debates of 98] and led to misconceptions & misreasonings concerning the true character of the pol: system, and to the idea that it was a compact between the Govts. of the States and the Govt. of the U. S. an idea promoted by the familiar one applied to Govts. independent of the people, particularly the British, of [?] a compact between the monarch & his subjects, pledging protection on one side & allegiance on the other.

The plain fact of the case is that the Constitution of the U. S. was created by the people composing the respective States, who alone had the right; that they organized the Govt. into Legis. Ex. & Judicy. departs. delegating thereto certain portions of power to be exercised over the whole, and reserving the other portions to themselves respectively. As these distinct portions of power were to be exercised by the General Govt. & by the State Govts; by each within limited spheres; and as of course controversies concerning the boundaries of their power wd happen, it was provided that they should be decided by the Supreme Court of the U. S. so constituted as to be as impartial as it could be made by the mode of appointment & responsibility for the Judges.

Is there then no remedy for usurpations in which the Supreme Ct. of the U. S. concur? Yes: constitutional remedies such as have been found effectual; particularly in the case of alien & sedition laws, and such as will in all cases be effectual, whilst the responsibility of the Genl. Govt to its constituents continues:—Remonstrances & instructions—recurring elections & impeachments; amendt. of Const. as provided by itself & exemplified in the 11th article limiting the suability of the States.

These are resources of the States agst. the Genl. Govt. resulting from the relations of the States to that Govt: whilst no corresponding controul exists in the relations of the Genl to the individual Govts all of whose functionaries are independent of the United States in their appt and responsibility.

Finally should all the constitutional remedies fail, and the usurpations of the Genl Govt become so intolerable as absolutely to forbid a longer passive obedience & non-resistance, a resort to the original rights of the parties becomes justifiable; and redress may be sought by shaking off the yoke, as of right, might be done by part of an individual State in a like case; or even by a single citizen, could he effect it, if deprived of rights absolutely essential to his safety & happiness. In the defect of their ability to resist, the individual citizen may seek relief in expatriation or voluntary exile1 a resort not within the reach of large portions of the community.

In all the views that may be taken of questions between the State Govts & the Genl. Govt. the awful consequences of a final rupture & dissolution of the Union shd. never for a moment be lost sight of. Such a prospect must be deprecated, must be shuddered at by every friend to his country, to liberty, to the happiness of man. For, in the event of a dissolution of the Union, an impossibility of ever renewing it is brought home to every mind by the difficulties encountered in establishing it. The propensity of all communities to divide when not pressed into a unity by external danger, is a truth well understood. There is no instance of a people inhabiting even a small island, if remote from foreign danger, and sometimes in spite of that pressure, who are not divided into alien, rival, hostiletribes. The happy Union of these States is a wonder; their Constn. a miracle; their example the hope of Liberty throughout the world. Woe to the ambition that would meditate the destruction of either!

SPEECH IN THE VIRGINIA CONSTITUTIONAL CONVENTION.1

December 2, 1829.

Although the actual posture of the subject before the Committee might admit a full survey of it, it is not my purpose, in rising, to enter into the wide field of discussion, which has called forth a display of intellectual resources and varied powers of eloquence, that any country might be proud of, and which I have witnessed with the highest gratification. Having been, for a very long period, withdrawn from any participation in proceedings of deliberative bodies, and under other disqualifications now of which I am deeply sensible, though perhaps less sensible than others may perceive that I ought to be, I shall not attempt more than a few observations, which may suggest the views I have taken of the subject, and which will consume but little of the time of the Committee, become precious. It is sufficiently obvious, that persons now and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right. The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. In monarchies, the interests and happiness of all may be sacrificed to the caprice and passions of a despot. In aristocracies, the rights and welfare of the many may be sacrificed to the pride and cupidity of the few. In republics, the great danger is, that the majority may not sufficiently respect the rights of the minority. Some gentlemen, consulting the purity and generosity of their own minds, without adverting to the lessons of experience, would find a security against that danger, in our social feelings; in a respect for character; in the dictates of the monitor within; in the interests of individuals; in the aggregate interests of the community. But man is known to be a selfish, as well as a social being. Respect for character, though often a salutary restraint, is but too often overruled by other motives. When numbers of men act in a body, respect for character is often lost, just in proportion as it is necessary to control what is not right. We all know that conscience is not a sufficient safe-guard; and besides, that conscience itself may be deluded; may be misled, by an unconscious bias, into acts which an enlightened conscience would forbid. As to the permanent interest of individuals in the aggregate interests of the community, and in the proverbial maxim, that honesty is the best policy, present temptation is often found to be an overmatch for those considerations. These favourable attributes of the human character are all valuable, as auxiliaries; but they will not serve as a substitute for the coercive provision belonging to Government and Law. They will always, in proportion as they prevail, be favourable to a mild administration of both: but they can never be relied on as a guaranty of the rights of the minority against a majority disposed to take unjust advantage of its power. The only effectual safeguard to the rights of the minority, must be laid in such a basis and structure of the Government itself, as may afford, in a certain degree, directly or indirectly, a defensive authority in behalf of a minority having right on its side.

To come more nearly to the subject before the Committee, viz.: that peculiar feature in our community, which calls for a peculiar division in the basis of our government, I mean the coloured part of our population. It is apprehended, if the power of the Commonwealth shall be in the hands of a majority, who have no interest in this species of property, that, from the facility with which it may be oppressed by excessive taxation, injustice may be done to its owners. It would seem, therefore, if we can incorporate that interest into the basis of our system, it will be the most apposite and effectual security that can be devised. Such an arrangement is recommended to me by many very important considerations. It is due to justice; due to humanity; due to truth; to the sympathies of our nature; in fine, to our character as a people, both abroad and at home, that they should be considered, as much as possible, in the light of human beings, and not as mere property. As such, they are acted upon by our laws, and have an interest in our laws. They may be considered as making a part, though a degraded part, of the families to which they belong.

If they had the complexion of the Serfs in the North of Europe, or of the Villeins formerly in England; in other terms, if they were of our own complexion, much of the difficulty would be removed. But the mere circumstance of complexion cannot deprive them of the character of men. The Federal number, as it is called, is particularly recommended to attention in forming a basis of Representation, by its simplicity, its certainty, its stability, and its permanency. Other expedients for securing justice in the case of taxation, while they amount in pecuniary effect, to the same thing, have been found liable to great objections: and I do not believe that a majority of this Convention is disposed to adopt them, it they can find a substitute they can approve. Nor is it a small recommendation of the Federal number, in my view, that it is in conformity to the ratio recognized in the Federal Constitution. The cases, it is true, are not precisely the same, but there is more of analogy than might at first be supposed. If the coloured population were equally diffused through the State, the analogy would fail; but existing as it does, in large masses, in particular parts of it, the distinction between the different parts of the State, resembles that between the slave-holding and non-slave-holding States: and, if we reject a doctrine in our own State, whilst we claim the benefit of it in our relations to other States, other disagreeable consequences may be added to the charge of inconsistency, which will be brought against us. If the example of our sister States is to have weight, we find that in Georgia, the Federal number is made the basis of Representation in both branches of their Legislature; and I do not learn, that any dissatisfaction or inconvenience has flowed from its adoption. I wish we could know more of the manner in which particular organizations of Government operate in other parts of the United States. There would be less danger of being misled into error, and we should have the advantage of their experience, as well as our own. In the case I mention, there can, I believe, be no error.

Whether, therefore, we be fixing a basis of Representation, for the one branch or the other of our Legislature, or for both, in a combination with other principles, the Federal ratio is a favourite resource with me. It entered into my earliest views of the subject, before this Convention was assembled: and though I have kept my mind open, have listened to every proposition which has been advanced, and given to them all a candid consideration, I must say, that in my judgment, we shall act wisely in preferring it to others, which have been brought before us. Should the Federal number be made to enter into the basis in one branch of the Legislature, and not into the other, such an arrangement might prove favourable to the slaves themselves. It may be, and I think it has been suggested, that those who have themselves no interest in this species of property, are apt to sympathise with the slaves, more than may be the case with their masters; and would, therefore, be disposed, when they had the ascendancy, to protect them from laws of an oppressive character, whilst the masters, who have a common interest with the slaves, against undue taxation, which must be paid out of their labour, will be their protectors when they have the ascendancy.

The Convention is now arrived at a point, where we must agree on some common ground, all sides relaxing in their opinions, not changing, but mutually surrendering a part of them. In framing a Constitution, great difficulties are necessarily to be overcome; and nothing can ever overcome them, but a spirit of compromise. Other nations are surprised at nothing so much as our having been able to form Constitutions in the manner which has been exemplified in this country. Even the union of so many States, is, in the eyes of the world, a wonder; the harmonious establishment of a common Government over them all, a miracle. I cannot but flatter myself, that without a miracle, we shall be able to arrange all difficulties. I never have despaired, notwithstanding all the threatening appearances we have passed through. I have now more than a hope—a consoling confidence, that we shall at last find, that our labours have not been in vain.

[1 ]Correspondence between John Quincy Adams, esquire, President of the United States, and several citizens of Massachusetts, concerning the charge of a design to dissolve the union alleged to have existed in that state. Boston, 1829.

[1 ]Cabell wrote from Warminster: “May I take the liberty to ask that you will be so good as to read the enclosed pamphlet and to inform me whether the argument in the speech respecting the rights of the parties to the compact be sound and in conformity to your own views of the subject, and if there be error, where and to what extent, it exists.” He had advanced the propositions in the pamphlet in the State Senate and afterwards written them out as a speech with notes for printing—Mad. MSS.

[1 ]Cabell sent the resolutions of the sessions of 1825-26, 1826-27, and 1828-29. The first declared:—“That the imposition of taxes and duties by the Congress of the U. States, for the purpose of protecting and encouraging domestic manufactures, is an unconstitutional exercise of power and is highly oppressive and partial in its operations.”

The second:—“That this General Assembly does hereby most solemnly protest against any claim or exercise of power, whatever, on the part of the General Government, which serves to draw money from the inhabitants of this state, into the treasury of the U. States and to disburse it for any object whatever, except for carrying into effect the grants of power to the General Government contained in the Constitution of the U. States,” and

“That this General Assembly does most solemnly protest against the claim or exercise of any power, whatever, on the part of the General Government, to protect domestic manufactures, the protection of manufactures not being amongst the grants of power to that government specified in the constitution of the U. States,—and also against the operations of the Act of Congress, passed May 22., 1824, entitled ‘An Act to amend the several acts imposing duties on imports’ generally called the tariff law, which vary the distribution of the proceeds of the labour of the community, in such a manner as to transfer property from one portion of the United States to another, and to take private property from the owner for the benefit of another person, not rendering public service,—as unconstitutional, unwise, unjust, unequal and oppressive.”

The third:—“That this General Assembly of Virginia, actuated by the desire of guarding the constitution from all violation, anxious to preserve and perpetuate the Union and to execute with fidelity the trust reposed in it by the people, as one of the high contracting parties, feels itself bound to declare, and it hereby most solemnly declares its deliberate conviction that the acts of Congress usually denominated the tariff laws passed avowedly for the protection of American manufactures are not authorized by the plain construction true intent and meaning of the constitution.”—Mad. MSS.

[1 ]Ante Vol. VIII, p. 447.

[1 ]See letter to N. P. Trist; and see also the distinction between an expatriating individual withdrawing only his person and moveable effects, and the withdrawal of a State mutilating the domain of the Union.—Madison’s Note.

The Virginia Expatriation Act was that of October, 1783, Sec. III. Hening’s Stats. at Large, XI, 325. The letter to Trist was dated February 15, 1830.

It has been too much the case in expounding the Constitution of the U. S. that its meaning has been sought not in its peculiar and unprecedented modifications of Power; but by viewing it, some through the medium of a simple Govt others thro’ that of a mere League of Govts. It is neither the one nor the other, but essentially different from both. It must consequently be its own interpreter. No other Government can furnish a key to its true character. Other Governments present an individual & indivisible sovereignty. The Constitution of the U. S. divides the sovereignty, the portions surrendered by the States, composing the Federal sovereignty over specified subjects, the portions retained forming the sovereignty of each over the residuary subjects within its sphere. If sovereignty cannot be thus divided, the Political System of the United States is a chimæra, mocking the vain pretensions of human wisdom. If it can be so divided, the system ought to have a fair opportunity of fulfilling the wishes & expectations which cling to the experiment.

Nothing can be more clear than that the Constitution of the U. S. has created a Government, in as strict a sense of the term, as the Governments of the States created by their respective Constitutions. The Federal Govt. has like the State govts. its Legislative, its Executive & its Judiciary Departments. It has, like them, acknowledged cases in which the powers of these departments are to operate. And the operation is to be directly on persons & things in the one Govt as in the others. If in some cases, the jurisdiction is concurrent as it is in others exclusive, this is one of the features constituting the peculiarity of the system.

In forming this compound scheme of Government it was impossible to lose sight of the question, what was to be done in the event of controversies which could not fail to occur, concerning the partition line, between the powers belonging to the Federal and to the State Govts. That some provision ought to be made, was as obvious and as essential, as the task itself was difficult and delicate.

That the final decision of such controversies, if left to each of the 13 now 24 members of the Union, must produce a different Constitution & different laws in the States was certain; and that such differences must be destructive of the common Govt & of the Union itself, was equally certain. The decision of questions between the common agents of the whole & of the parts, could only proceed from the whole, that is from a collective not a separate authority of the parts.

The question then presenting itself could only relate to the least objectionable mode of providing for such occurrences, under the collective authority.

The provision immediately and ordinarily relied on, is manifestly the Supreme Court of the U. S., clothed as it is, with a Jurisdiction “in controversies to which the U. S. shall be a party;” the Court itself being so constituted as to render it independent & impartial in its decisions, [see Federalist, No. 39, p. 241] whilst other and ulterior resorts would remain in the elective process, in the hands of the people themselves the joint constituents of the parties; and in the provision made by the Constitution for amending itself. All other resorts are extra & ultra constitutional, corresponding to the Ultima Ratio of nations renouncing the ordinary relations of peace.

If the Supreme Court of the U. S. be found or deemed not sufficiently independent and impartial for the trust committed to it, a better Tribunal is a desideratum. But whatever this may be, it must necessarily derive its authority from the whole not from the parts, from the States in some collective not individual capacity. And as some such Tribunal is a vital element, a sine qua non, in an efficient & permanent Govt the Tribunal existing must be acquiesced in, until a better or more satisfactory one can be substituted.

Altho’ the old idea of a compact between the Govt & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them. These two compacts may be considered as blended in the Constitution of the U. S., which recognises a union or society of States, and makes it the basis of the Govt. formed by the parties to it.

It is the nature & essence of a compact that it is equally obligatory on the parties to it, and of course that no one of them can be liberated therefrom without the consent of the others, or such a violation or abuse of it by the others, as will amount to a dissolution of the compact.

Applying this view of the subject to a single community, it results, that the compact being between the individuals composing it, no individual or set of individuals can at pleasure, break off and set up for themselves, without such a violation of the compact as absolves them from its obligations. It follows at the same time that, in the event of such a violation, the suffering party rather than longer yield a passive obedience may justly shake off the yoke, and can only be restrained from the attempt by a want of physical strength for the purpose. The case of individuals expatriating themselves, that is leaving their country in its territorial as well as its social & political sense, may well be deemed a reasonable privilege, or rather as a right impliedly reserved. And even in this case equitable conditions have been annexed to the right which qualify the exercise of it.

Applying a like view of the subject to the case of the U. S. it results, that the compact being among individuals as imbodied into States, no State can at pleasure release itself therefrom, and set up for itself. The compact can only be dissolved by the consent of the other parties, or by usurpations or abuses of power justly having that effect. It will hardly be contended that there is anything in the terms or nature of the compact, authorizing a party to dissolve it at pleasure.

It is indeed inseparable from the nature of a compact, that there is as much right on one side to expound it & to insist on its fulfilment according to that exposition, as there is on the other so to expound it as to furnish a release from it, and that an attempt to annul it by one of the parties, may present to the other, an option of acquiescing in the annulment, or of preventing it as the one or the other course may be deemed the lesser evil. This is a consideration which ought deeply to impress itself on every patriotic mind, as the strongest dissuasion from unnecessary approaches to such a crisis. What would be the condition of the States attached to the Union & its Govt and regarding both as essential to their well-being, if a State placed in the midst of them were to renounce its Federal obligations, and erect itself into an independent and alien nation? Could the States N. & S. of Virginia, Pennsyla. or N. York, or of some other States however small, remain associated and enjoy their present happiness, if geographically politically and practically thrown apart by such a breach in the chain which unites their interests and binds them together as neighbours & fellow citizens. It could not be. The innovation would be fatal to the Federal Governt. fatal to the Union, and fatal to the hopes of liberty and humanity; and presents a catastrophe at which all ought to shudder.

Without identifying the case of the U. S. with that of individual States, there is at least an instructive analogy between them. What would be the condition of the State of N. Y. of Massts. or of Pena for example, if portions containing their great commercial cities, invoking original rights as paramount to social & constitutional compacts, should erect themselves into distinct & absolute sovereignties? In so doing they would do no more, unless justified by an intolerable oppression, than would be done by an individual State as a portion of the Union, in separating itself, without a [Editor: illegible word] cause, from the other portions. Nor would greater evils be inflicted by such a mutilation of a State of some of its parts, than might be felt by some of the States from a separation of its neighbours into absolute and alien sovereignties.

Even in the case of a mere League between nations absolutely independent of each other, neither party has a right to dissolve it at pleasure; each having an equal right to expound its obligations, and neither, consequently a greater right to pronounce the compact void than the other has to insist on the mutual execution of it. [See, in Mr. Jefferson’s volumes, his letters to J. M. Mr. Monroe & Col. Carrington].

Having suffered my pen to take this ramble over a subject engaging so much of your attention, I will not withhold the notes made by it from your persual. But being aware that without more development & precision, they may in some instances be liable to misapprehension or misconstruction, I will ask the favour of you to return the letter after it has passed under your partial & confidential eye.

I have made no secret of my surprize and sorrow at the proceedings in S. Carolina, which are understood to assert a right to annul the Acts of Congress within the State, & even to secede from the Union itself. But I am unwilling to enter the political field with the “telum imbelle” which alone I could wield. The task of combating such unhappy aberrations belongs to other hands. A man whose years have but reached the canonical three-score-&-ten (and mine are much beyond the number) should distrust himself, whether distrusted by his friends or not, and should never forget that his arguments, whatever they may be will be answered by allusions to the date of his birth.

With affect. respects,

[1 ]From Proceedings and Debates of the Virginia State Convention of 1829-30. Richmond, 1830. In 1827-28 the people of the State voted in favor of holding a State convention to revise the constitution and Madison accepted service as a delegate, this being his last public employment. He made but one speech, although he offered several motions. The question before the convention was the qualification for suffrage. The report says: “Mr. Madison now rose and addressed the Chair. The members rushed from their seats, and crowded around him.”

He made the following memorandum suggested by the question (See also ante, Vol. IV., pp. 120, 121, n.)

NOTE DURING THE CONVENTION FOR AMENDING THE CONSTITUTION OF VIRGINIA.



The right of suffrage being of vital importance, and approving an extension of it to House keepers & heads of families, I will suggest a few considerations which govern my judgment on the subject.

Were the Constitution on hand to be adapted to the present circumstances of our Country, without taking into view the changes which time is rapidly producing, an unlimited extension of the right wd probably vary little the character of our public councils or measures. But as we are to prepare a system of Govt for a period which it is hoped will be a long one, we must look to the prospective changes in the condition and composition of the society on which it is to act.

It is a law of nature, now well understood, that the earth under a civilized cultivation is capable of yielding subsistence for a large surplus of consumers, beyond those having an immediate interest in the soil, a surplus which must increase with the increasing improvements in agriculture, and the labor-saving arts applied to it. And it is a lot of humanity that of this surplus a large proportion is necessarily reduced by a competition for employment to wages which afford them the bare necessaries of life. That proportion being without property, or the hope of acquiring it, can not be expected to sympathize sufficiently with its rights, to be safe depositories of power over them.

What is to be done with this unfavored class of the community? If it be, on one hand, unsafe to admit them to a full share of political power, it must be recollected, on the other, that it cannot be expedient to rest a Republican Govt on a portion of the society having a numerical & physical force excluded from, and liable to be turned against it, and which would lead to a standing military force, dangerous to all parties & to liberty itself.

This view of the subject makes it proper to embrace in the partnership of power, every description of citizens having a sufficient stake in the public order, and the stable administration of the laws, and particularly the House keepers & Heads of families; most of whom “having given hostages to fortune,” will have given them to their Country also.

This portion of the community, added to those, who although not possessed of a share of the soil, are deeply interested in other species of property, and both of them added to the territorial proprietors, who in a certain sense may be regarded as the owners of the Country itself, form the safest basis of free Government. To the security for such a Govt. afforded by these combined numbers, may be further added, the political & moral influence emanating from the actual possession of authority and a just & beneficial exercise of it.

It would be happy if a State of Society could be found or framed, in which an equal voice in making the laws might be allowed to every individual bound to obey them. But this is a Theory, which like most Theories, confessedly requires limitations & modifications, and the only question to be decided in this as in other cases, turns on the particular degree of departure, in practice, required by the essence & object of the Theory itself.

It must not be supposed that a crowded state of population, of which we have no example here, and which we know only by the image reflected from examples elsewhere, is too remote to claim attention.

The ratio of increase in the U. S. shows that the present.

12 Millions will in 25 years be 24 Mils.
24 Millions will in 50 years be 48 Mils.
48 Millions will in 75 years be 96 Mils.
96 Millions will in 100 years be 192 Mils.



There may be a gradual decrease of the rate of increase. but it will be small as long as agriculture shall yield its abundance. G. Britain has doubled her population in the last 50 years; notwithstanding its amount in proportion to its territory at the commencement of that period, and Ireland is a much stronger proof of the effect of an increasing product of food, in multiplying the consumers.

How far this view of the subject will be affected by the Republican laws of descent and distribution, in equalizing the property of the citizens and in reducing to the minimum mutual surplusses for mutual supplies, cannot be inferred from any direct and adequate experiment. One result would seem to be a deficiency of the capital for the expensive establishments which facilitate labour and cheapen its products on one hand, and, on the other, of the capacity to purchase the costly and ornamental articles consumed by the wealthy alone, who must cease to be idlers and become labourers. Another the increased mass of labourers added to the production of necessaries by the withdrawal for this object, of a part of those now employed in producing luxuries, and the addition to the labourers from the class of present consumers of luxuries. To the effect of these changes, intellectual, moral, and social, the institutions and laws of the Country must be adapted, and it will require for the task all the wisdom of the wisest patriots.

Supposing the estimate of the growing population of the U. S. to be nearly correct, and the extent of their territory to be 8 or 9 hundred Mils of acres, and one fourth of it to consist of inarable surface, there will in a century or a little more, be nearly as crowded a population in the U. S. as in G. Britain or France, and if the present Constitution (of Virginia) with all its flaws, lasted more than half a century, it is not an unreasonable hope that an amended one will last more than a century.

If these observations be just, every mind will be able to develop & apply them.—Mad. MSS.