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The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.

Author: James Madison
Editor: Gaillard Hunt

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

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TO GEORGE McDUFFIE.1

Montpellier, May 8, 1830.

Dear Sir

I have recd. a copy of the late Report, on the Bank of the U. S. and finding by the name on the envelope, that I am indebted for the communication to your politeness, I tender you my thanks for it.2 The document contains very interesting & instructive views of the subject; particularly of the objectionable features in the substitute proposed for the existing Bank.

I am glad to find that the Report sanctions the sufficiency of the course and character of the precedents which I had regarded as overruling individual judgments in expounding the Constitution. You are not aware perhaps of a circumstance, weighing against the plea that the chain of precedents was broken by the negative on a Bank bill by the casting vote of the President of the Senate, given expressly on the ground that the Bill was not authorized by the Constitution. The circumstance alluded to is that the equality of votes which threw the casting one on the Chair, was the result of a union of a number of members who objected to the expediency only of the Bill, with those who opposed it on constitutional grounds. On a naked question of constitutionality, it was understood that there would have been a majority who made no objection on that score, [the journal of the Senate may yet test the fact.]

Will you permit me Sir to suggest for consideration whether the Report (pg.-10) in the position & reasoning applied to the effect of a change in the quantity on the value of a currency, sufficiently distinguishes between a special currency, and a currency not convertible into specie. The latter being of local circulation only, unless the local use for it increase or diminish, with the increase or decrease of its quantity, [will] be changeable in its value, as the quantity of the currency changes. The metals on the other hand, having a universal currency, would not be equally affected by local changes in their circulating amount, a surplus producing a proportional depreciation at home, might bear the expense of transportation, and avail itself of its current value abroad.

If I have misconceived the meaning of the Report, you will be good enough to pardon the error, and to accept, with a repetition of my thanks, assurances of my great & cordial respect.

TO JAMES HILLHOUSE.mad. mss.

Montp^rMay 1830.

Dear Sir—

I have received your letter of the 10^th inst: with the pamphlet containing the proposed amendments of the Constitution of the U. States, on which you request my opinion & remarks.1

Whatever pleasure might be felt in a fuller compliance with your request, I must avail myself of the pleas of the age I have reached, and of the controul of other engagements, for not venturing on more than the few observations suggested by a perusal of what you have submitted to the public.

I readily acknowledge the ingenuity which devised the plan you recommend, and the strength of reasoning with which you support it. I cannot however but regard it as liable to the following remarks:

1. The first that occurs is, that the large States would not exchange the proportional agency they now have in the appointment of the Chief Magistrate, for a mode placing the largest & smallest States on a perfect equality in that cardinal transaction. N. York has in it, even now more than 13 times the weight of several of the States, and other States according to their magnitudes w^d decide on the change with correspondent calculations & feelings.

The difficulty of reconciling the larger States to the equality in the Senate is known to have been the most threatning that was encountered in framing the Constitution. It is known also that the powers committed to that body, comprehending, as they do, Legislative, Ex. & Judicial functions, was among the most serious objections, with many, to the adoption of the Constitution.

2. As the President elect would generally be without any previous evidence of national confidence, and have been in responsible relations only to a particular State, there might be danger of State partialities, and a certainty of injurious suspicions of them.

3. Considering the ordinary composition of the Senate, and the number (in a little time nearly 50) out of which a single one was to be taken by pure chance; it must often happen, that the winner of the prize would want some of the qualities necessary to command the respect of the nation, and possibly be marked with some of an opposite tendency. On a review of the composition of that Body thro’ the successive periods of its existence, (antecedent to the present which may be an exception) how often will names present themselves, which would be seen with mortified feelings at the head of the nation. It might happen, it is true, that, in the choice of Senators, an eventual elevation to that important trust might produce more circumspection in the State Legislatures. But so remote a contingency could not be expected to have any great influence; besides that there might be States not furnishing at the time, characters which would satisfy the pride and inspire the confidence of the States & of the People.

4. A President not appointed by the nation and without the weight derived from its selection & confidence, could not afford the advantage expected from the qualified negative on the act of the Legislative branch of the Gov^t. He might either shrink from the delicacy of such an interposition, or it might be overruled with too little hesitation by the body checked in its career.

5. In the vicissitudes of party, adverse views & feelings will exist between the Senate & President. Under the amendments proposed, a spirit of opposition in the former to the latter would probably be more frequent than heretofore. In such a state of things, how apt might the Senate be to embarrass the President, by refusing to concur in the removal of an obnoxious officer; how prone would be a refractory officer, having powerful friends in the Senate, to take shelter under that authority, & bid defiance to the President; and, with such discord and anarchy in the Ex. Department, how impaired would be the security for a due execution of the Laws!

6. On the supposition that the above objection would be overbalanced by the advantage of reducing the power and the patronage now attached to the Presidential office; it has generally been admitted, that the Heads of Dep^ts at least who are at once the associates & the organs of the Chief Magistrate, ought to be well disposed towards him, and not independent of him. What would be the situation of the President, and what might be the effect on the Executive business, if those immediately around him, and in daily consultation with him, could, however adverse to him in their feelings & their views, be fastened upon him, by a Senate disposed to take side with them? The harmony so expedient between the P. & Heads of Departments, and among the latter themselves, has been too liable to interruption under an organization apparently so well providing against it.

I am aware that some of these objections might be mitigated, if not removed; but not I suspect in a degree to render the proposed modification of the Executive Department an eligible substitute for the one existing. At the same time, I am duly sensible of the evils incident to the existing one, and that a solid improvement of it is a desideratum that ought to be welcomed by all enlightened patriots.

In the mean time, I cannot feel all the alarm you express at the prospect for the future as reflected from the mirror of the past. It will be a rare case that the Presidential contest will not issue in a choice that will not discredit the station, and not be acquiesced in by the unsuccessful party, foreseeing, as it must do, the appeal to be again made at no very distant day to the will of the nation. As long as the country shall be exempt from a military force powerful in itself and combined with a powerful faction, liberty & peace will find safeguards in the elective resource and the spirit of the people. The dangers which threaten our political system least remote are perhaps of other sorts and from other sources.

I will only add to these remarks, what is indeed sufficiently evident, that they are too hasty & too crude for any other than a private, and that an indulgent eye.

Mrs. M. is highly gratified by your kind expressions towards her, & begs you to be assured that she still feels for you that affectionate friendship with which you impressed her many years ago. Permit me to join her in best wishes for your health & every other happiness.

TO M. L. HURLBERT.mad. mss.

Montp^r May 1830.

I rec^d. Sir, tho’ not exactly in the due time, your letter of April 25, with a copy of your pamphlet, on the subject of which you request my opinions.

With a request opening so wide a field, I could not undertake a full compliance, without forgetting the age at which it finds me, and that I have other engagements precluding such a task. I must hope therefore you will accept in place of it, a few remarks which tho’ not adapted to the use you had contemplated, may manifest my respect for your wishes, and for the subject which prompted them.

The pamphlet certainly evinces a very strong pen, & talents adequate to the discussion of constitutional topics of the most interesting class. But in doing it this justice, and adding with pleasure, that it contains much matter with which my views of the Constitution of the U. S. accord; I must add also that it contains views of the Constitution from which mine widely differ.

I refer particularly to the construction you seem to put on the introductory clause “We the people” and on the phrases “common defence & gen^l. welfare.” Either of these, if taken as a measure of the powers of the Gen^l Gov^t would supersede the elaborated specifications which compose the Body of the Instrument, in contravention to the fairest rules of interpretation. And if I am to answer your appeal to me as a witness, I must say that the real measure of the powers meant to be granted to Congress by the Convention, as I understood and believe, is to be sought in the specifications, to be expounded indeed not with the strictness applied to an ordinary statue by a Court of Law; nor on the other hand with a latitude that under the name of means for carrying into execution a limited Government, would transform it into a Government without limits.

But whatever respect may be thought due to the intention of the Convention, which prepared & proposed the Constitution, as presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed thro’ the Conventions which ratified the Constitution.

That in a Constitution, so new, and so complicated, there should be occasional difficulties & differences in the practical expositions of it, can surprize no one; and this must continue to be the case, as happens to new laws on complex subjects, until a course of practice of sufficient uniformity and duration to carry with it the public sanction shall settle doubtful or contested meanings.

As there are legal rules for interpreting laws, there must be analogous rules for interpreting const^ns. and among the obvious and just guides applicable to the Constⁿ. of the U. S. may be mentioned—

1. The evils & defects for curing which the Constitution was called for & introduced.

2. The comments prevailing at the time it was adopted.

3. The early, deliberate & continued practice under the Constitution, as preferable to constructions adapted on the spur of occasions, and subject to the vicissitudes of party or personal ascendencies.

On recurring to the origin of the Constitution and examining the structure of the Gov^t. we perceive that it is neither a Federal Gov^t. created by the State Gov^ts. like the Revolutionary Congress; nor a consolidated Gov^t. (as that term is now applied,) created by the people of the U. S. as one community, and as such acting by a numerical majority of the whole.

The facts of the case which must decide its true character, a character without a prototype, are that the Constitution was created by the people, but by the people as composing distinct States, and acting by a majority in each:

That, being derived from the same source as the constitutions of the States, it has within each State, the same authority as the Constitution of the State, and is as much a Constitution, in the strict sense of the term, as the constitution of the State:

That, being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it is not revocable or alterable at the will of the States individually, as the constitution of a State is revocable & alterable at its individual will:

That the sovereign or supreme powers of Gov^t. are divided into the separate depositories of the Gov^t. of the U. S. and the Gov^ts. of the individual States:

That the Gov^t. of the U. S. is a Gov^t. in as strict a sense of the term, as the Gov^ts. of the States; being, like them, organized into Legislative, Executive & Judiciary dep^ts. operating, like them, directly on persons & things, and having like them the command of a physical force for executing the powers committed to it:

That the supreme powers of Gov^t being divided between different Gov^ts. and controversies as to the landmarks of jurisdiction being unavoidable, provision for a peaceable & authoritative decision of them was obviously essential:

That, to leave this decision to the States, numerous as they were & with a prospective increase, would evidently result in conflicting decisions subversive of the common Gov^t and of the Union itself:

That, according to the actual provision against such calamities, the Constitution & laws of the U. S. are declared to be paramount to those of the individual States, & an appellate supremacy is vested in the Judicial power of the U. S.:

That as safeguards ag^st. usurpations and abuses of power by the Gov^t of the U. S. the members of its Legislative and the head of its Executive Department, are eligible by & responsible to, the people of the States or the Legislatures of the States; and as well the Judicial as the Executive functionaries including the head, are impeachable by the Representatives of the people in one branch of the Legislature of the U. S. and triable by the Representatives of the States in the other Branch:

States can, through forms of the const^l. elective provisions, controul the Gen^l. Gov^t. This has no agency in electing State Gov^ts., & can only controul them through the functionaries particularly the Judiciary of the General Government:

That in case of an experienced inadequacy of these provisions, an ulterior resort is provided in amendments attainable by an intervention of the States, which may better adapt the Constitution for the purposes of its creation.

Should all these provisions fail, and a degree of oppression ensue, rendering resistence & revolution a lesser evil than a longer passive obedience, there can remain but the ultima ratio, applicable to extreme cases, whether between nations or the component parts of them.

Such, Sir, I take to be an outline view, tho’ an imperfect one, of the pol: system presented in the Constitution of the U. S. Whether it be the best system that might have been devised, or what the improvements that might be made in it, are questions equally beyond the scope of your letter and that of the answer, with which I pray you to accept my respects and good wishes.

TO MARTIN VAN BUREN.mad. mss.

Montpellier, June 3, 1830.

J. Madison has duly rec^d the copy of the President’s Message forwarded by M^r Van Buren. In returning his thanks for this polite attention, he regrets the necessity of observing that the Message has not rightly conceived the intention of J. M. in his veto in 1817, on the Bill relating to Internal Improvements. It was an object of the veto to deny to Congress as well the appropriating power, as the executing and jurisdictional branches of it. And it is believed that this was the general understanding at the time, and has continued to be so, according to the references occasionally made to the document. Whether the language employed duly conveyed the meaning of which J. M. retains the consciousness, is a question on which he does not presume to judge for others.

Relying on the candour to which these remarks are addressed, he tenders to M^r. Van Buren renewed assurances of his high esteem & good wishes.

TO MARTIN VAN BURENmad. mss.

Montpellier, July 5, 1830.

Dear Sir,—

Your letter of June 9^th. came duly to hand. On the subject of the discrepancy between the construction put by the message of the President on the veto of 1817, and the intention of its author, the President will of course consult his own view of the case. For myself, I am aware that the document must speak for itself, and that that intention cannot be substituted for the established rules of interpretation.

The several points on which you desire my ideas are necessarily vague, and the observations on them cannot well be otherwise. They are suggested by a respect for your request, rather than by a hope that they can assist the object of it.

“Point 1. The establishment of some rule which shall give the greatest practicable precision to the power of appropriating money to objects of general concern.”

The rule must refer, it is presumed, either to the objects of appropriation, or to the apportionment of the money.

A specification of the objects of general concern in terms as definite as may be, seems to be the rule most applicable; thus Roads simply, if for all the uses of Roads; or Roads post and military, if limited to those uses; or post roads only, if so limited: thus, Canals, either generally, or for specified uses: so again Education, as limited to a university, or extended to seminaries of other denominations.

As to the apportionment of the money, no rule can exclude Legislative discretion but that of distribution among the States according to their presumed contributions; that is, to their ratio of Representation in Congress. The advantages of this rule are its certainty, and its apparent equity. The objections to it may be that, on one hand, it would increase the comparative agency of the Federal Government, and, on the other that the money might not be expended on objects of general concern; the interests of particular States not happening to coincide with the general interest in relation to improvements within such States.

“2. A rule for the Government of Grants for Light-houses, and the improvement of Harbours and Rivers, which will avoid the objects which it is desirable to exclude from the present action of the Government; and at the same time do what is imperiously required by a regard to the general commerce of the Country.”

National grants in these cases, seem to admit no possible rule of discrimination, but as the objects may be of national or local character. The difficulty lies here, as in all cases where the degree and not the nature of the case, is to govern the decision. In the extremes, the judgment is easily formed; as between removing obstructions in the Mississippi, the highway of commerce for half the nation, and a like operation, giving but little extension to the navigable use of a river, itself of confined use. In the intermediate cases, legislative discretion, and, consequently, legislative errors and partialities are unavoidable. Some controul is attainable in doubtful cases, from preliminary Investigations and Reports by disinterested and responsible agents.

In defraying the expense of internal improvements, strict justice would require that a part only and not the whole should be borne by the nation. Take for examples the Harbours of New York and New Orleans. However important in a commercial view they may be to the other portions of the Union, the States to which they belong, must derive a peculiar as well as a common advantage from improvements made in them, and could afford therefore to combine with grants from the common treasury, proportional contributions from their own. On this principle it is that the practice has prevailed in the States (as it has done with Congress) of dividing the expense of certain improvements, between the funds of the State, and the contributions of those locally interested in them.

Extravagant and disproportionate expenditures on Harbours, Light-houses and other arrangements on the Seaboard ought certainly to be controuled as much as possible. But it seems not to be sufficiently recollected, that in relation to our foreign commerce, the burden and benefit of accomodating and protecting it, necessarily go together, and must do so as long and as far, as the public revenue continues to be drawn thro’ the Custom-house. Whatever gives facility and security to navigation, cheapens imports; and all who consume them wherever residing are alike interested in what has that effect. If they consume they ought as they now do to pay. If they do not consume, they do not pay. The consumer in the most inland State derives the same advantage from the necessary and prudent expenditures for the security of our foreign navigation, as the consumer in a maritime State. Other local expenditures, have not of themselves a correspondent operation.

“3. The expediency of refusing all appropriations for internal improvements (other than those of the character last referred to, if they can be so called) until the national debt is paid; as well on account of the sufficiency of that motive, as to give time for the adoption of some constitutional or other arrangement by which the whole subject may be placed on better grounds; an arrangement which will never be seriously attempted as long as scattering appropriations are made, and the scramble for them thereby encouraged.”

The expediency of refusing appropriations, with a view to the previous discharge of the public debt, involves considerations which can be best weighed and compared at the focus of lights on the subject. A distant view like mine, can only suggest the remark: too vague to be of value, that a material delay ought not to be incurred for objects not both important and urgent; nor such objects to be neglected in order to avoid an immaterial delay. This is, indeed, but the amount of the exception glanced at in your parenthesis.

The mortifying scenes connected with a surplus revenue, are the natural offspring of a surplus; and cannot perhaps be entirely prevented by any plan of appropriation which allows a scope to Legislative discretion. The evil will have a powerful controul in the pervading dislike to taxes even the most indirect. The taxes lately repealed are an index of it. Were the whole revenue expended on internal improvements drawn from direct taxation, there would be danger of too much parsimony rather than too much profusion at the Treasury.

“4. The strong objections which exist against subscriptions to the stock of private companies by the United States.”

The objections are doubtless in many respects strong. Yet cases might present themselves which might not be favored by the State, whilst the concurring agency of an Undertaking Company would be desirable in a national view. There was a time it is said when the State of Delaware, influenced by the profits of a Portage, between the Delaware and Chesapeake was unfriendly to the Canal, now forming so important a link of internal communication between the North and the South. Undertakings by private companies carry with them a presumptive evidence of utility, and the private stakes in them, some security for economy in the execution, the want of which is the bane of public undertakings. Still the importunities of private companies cannot be listened to with more caution than prudence requires.

I have, as you know, never considered the powers claimed for Congress over roads and canals, as within the grants of the Constitution. But such improvements being justly ranked among the greatest advantages and best evidences of good Government; and having moreover, with us, the peculiar recommendation of binding the several parts of the Union more firmly together, I have always thought the power ought to be possessed by the common Government; which commands the least unpopular and most productive sources of revenue, and can alone select improvements with an eye to the national good. The States are restricted in their pecuniary resources; and Roads and Canals most important in a national view might not be important to the State or States possessing the domain and the soil; or might even be deemed disadvantageous; and on the most favourable supposition might require a concert of means and regulations among several States not easily effected, nor unlikely to be altogether omitted.

These considerations have pleaded with me in favour of the policy of vesting in Congress an authority over internal improvements. I am sensible at the same time of the magnitude of the trust, as well as of the difficulty of executing it properly and the greater difficulty of executing it satisfactorily.

On the supposition of a due establishment of the power in Congress, one of the modes of using it might be, to apportion a reasonable share of the disposable revenue of the United States among the States to be applied by them to cases of State concern; with a reserved discretion in Congress to effectuate improvements of general concern which the States might not be able or not disposed to provide for.

If Congress do not mean to throw away the rich fund inherent in the public lands, would not the sales of them, after their liberation from the original pledge, be aptly appropriated to objects of internal improvement. And why not also, with a supply of competent authority, to the removal to better situations the free black as well as red population, objects confessedly of national importance and desirable to all parties. But I am travelling out of the subject before me.

The date of your letter reminds me of the delay of the answer. The delay has been occasioned by interruptions of my health; and the answer such as it is, is offered in the same confidence in which it was asked.

With great esteem & cordial salutations.

TO EDWARD EVERETT.1mad. mss.

Aug^st 28 1830

D^r. Sir—

I have duly rec^d your letter in w^ch you refer to the “nullifying doctrine,” advocated as a constitutional right by some of our distinguished fellow citizens; and to the proceedings of the Virg^a Legislature in 98 & 99, as appealed to in behalf of that doctrine; and you express a wish for my ideas on those subjects.2

I am aware of the delicacy of the task in some respects; and the difficulty in every respect of doing full justice to it. But having in more than one instance complied with a like request from other friendly quarters, I do not decline a sketch of the views which I have been led to take of the doctrine in question, as well as some others connected with them; and of the grounds from which it appears that the proceedings of Virginia have been misconceived by those who have appealed to them. In order to understand the true character of the Constitution of the U. S. the error, not uncommon, must be avoided, of viewing it through the medium either of a consolidated Government or of a confederated Gov^t. whilst it is neither the one nor the other, but a mixture of both. And having in no model the similitudes & analogies applicable to other systems of Gov^t it must more than any other be its own interpreter, according to its text & the facts of the case.

From these it will be seen that the characteristic peculiarities of the Constitution are 1. The mode of its formation, 2. The division of the supreme powers of Gov^t between the States in their united capacity and the States in their individual capacities.

1. It was formed, not by the Governments of the component States, as the Federal Gov^t for which it was substituted was formed; nor was it formed by a majority of the people of the U. S. as a single community in the manner of a consolidated Government.

It was formed by the States—that is by the people in each of the States, acting in their highest sovereign capacity; and formed, consequently by the same authority which formed the State Constitutions.

Being thus derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State; and is as much a Constitution, in the strict sense of the term, within its prescribed sphere, as the Constitutions of the States are within their respective spheres; but with this obvious & essential difference, that being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will.

2. And that it divides the supreme powers of Gov^t. between the Gov^t. of the United States, & the Gov^ts. of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce & of treaties, and other enumerated powers vested in the Gov^t of the U. S. being of as high & sovereign a character as any of the powers reserved to the State Gov^ts

Nor is the Gov^t of the U. S. created by the Constitution, less a Gov^t. in the strict sense of the term, within the sphere of its powers, than the Gov^ts. created by the constitutions of the States are within their several spheres. It is like them organized into Legislative, Executive, & Judiciary Departments. It operates like them, directly on persons & things. And, like them, it has at command a physical force for executing the powers committed to it. The concurrent operation in certain cases is one of the features marking the peculiarity of the system.

Between these different constitutional Gov^ts.—the one operating in all the States, the others operating separately in each, with the aggregate powers of Gov^t divided between them, it could not escape attention that controversies would arise concerning the boundaries of jurisdiction; and that some provision ought to be made for such occurrences. A political system that does not provide for a peaceable & authoritative termination of occurring controversies, would not be more than the shadow of a Gov^t; the object & end of a real Gov^t being the substitution of law & order for uncertainty confusion, and violence.

That to have left a final decision in such cases to each of the States, then 13 & already 24, could not fail to make the Constⁿ. & laws of the U. S. different in different States was obvious; and not less obvious, that this diversity of independent decisions, must altogether distract the Gov^t. of the Union & speedily put an end to the Union itself. A uniform authority of the laws, is in itself a vital principle. Some of the most important laws could not be partially executed. They must be executed in all the States or they could be duly executed in none. An impost or an excise, for example, if not in force in some States, would be defeated in others. It is well known that this was among the lessons of experience w^ch. had a primary influence in bringing about the existing Constitution. A loss of its general auth^y would moreover revive the exasperating questions between the States holding ports for foreign commerce and the adjoining States without them, to which are now added all the inland States necessarily carrying on their foreign commerce through other States.

To have made the decisions under the authority of the individual States, co-ordinate in all cases with decisions under the authority of the U. S. would unavoidably produce collisions incompatible with the peace of society, & with that regular & efficient administration which is the essence of free Gov^ts. Scenes could not be avoided in which a ministerial officer of the U. S. and the correspondent officer of an individual State, would have rencounters in executing conflicting decrees, the result of which would depend on the comparative force of the local posse attending them, and that a casualty depending on the political opinions and party feelings in different States.

To have referred every clashing decision under the two authorities for a final decision to the States as parties to the Constitution, would be attended with delays, with inconveniences, and with expenses amounting to a prohibition of the expedient, not to mention its tendency to impair the salutary veneration for a system requiring such frequent interpositions, nor the delicate questions which might present themselves as to the form of stating the appeal, and as to the Quorum for deciding it.

To have trusted to negociation, for adjusting disputes between the Gov^t. of the U. S. and the State Gov^ts. as between independent & separate sovereignties, would have lost sight altogether of a Constitution & Gov^t for the Union; and opened a direct road from a failure of that resort, to the ultima ratio between nations wholly independent of and alien to each other. If the idea had its origin in the process of adjustment between separate branches of the same Gov^t the analogy entirely fails. In the case of disputes between independent parts of the same Gov^t neither part being able to consummate its will, nor the Gov. to proceed without a concurrence of the parts, necessity brings about an accommodation. In disputes between a State Gov^t. and the Gov^t of the U. States the case is practically as well as theoretically different; each party possessing all the Departments of an organized Gov^t. Legisl. Ex. & Judiciary; and having each a physical force to support its pretensions. Although the issue of negociation might sometimes avoid this extremity, how often would it happen among so many States, that an unaccommodating spirit in some would render that resource unavailing? A contrary supposition would not accord with a knowledge of human nature or the evidence of our own political history.

The Constitution, not relying on any of the preceding modifications for its safe & successful operation, has expressly declared on the one hand; 1. “That the Constitution, and the laws made in pursuance thereof, and all Treaties made under the authority of the U. S. shall be the supreme law of the land; 2. That the judges of every State shall be bound thereby, anything in the Constⁿ or laws of any State to the contrary notwithstanding; 3. That the judicial power of the U. S. shall extend to all cases in law & equity arising under the Constitution, the laws of the U. S. and Treaties made under their authority &c.”

On the other hand, as a security of the rights & powers of the States in their individual capacities, ag^st. an undue preponderance of the powers granted to the Government over them in their united capacity, the Constitution has relied on, 1. The responsibility of the Senators and Representatives in the Legislature of the U. S. to the Legislatures & people of the States. 2. The responsibility of the President to the people of the U. States; & 3. The liability of the Ex. and Judiciary functionaries of the U. S. to impeachment by the Representatives of the people of the States, in one branch of the Legislature of the U. S. and trial by the Representatives of the States, in the other branch; the State functionaries, Legislative, Executive, & judiciary, being at the same time in their appointment & responsibility, altogether independent of the agency or authority of the U. States.

How far this structure of the Gov^t of the U. S. be adequate & safe for its objects, time alone can absolutely determine. Experience seems to have shown that whatever may grow out of future stages of our national career, there is as yet a sufficient controul in the popular will over the Executive & Legislative Departments of the Gov^t. When the Alien & Sedition laws were passed in contravention to the opinions and feelings of the community, the first elections that ensued put an end to them. And whatever may have been the character of other acts in the judgment of many of us, it is but true that they have generally accorded with the views of a majority of the States and of the people. At the present day it seems well understood that the laws which have created most dissatisfaction have had a like sanction without doors; and that whether continued varied or repealed, a like proof will be given of the sympathy & responsibility of the Representative Body to the Constituent Body. Indeed, the great complaint now is, not against the want of this sympathy and responsibility, but against the results of them in the legislative policy of the nation.

With respect to the Judicial power of the U. S. and the authority of the Supreme Court in relation to the boundary of jurisdiction between the Federal & the State Gov^ts I may be permitted to refer to the [thirty-ninth] number of the “Federalist” for the light in which the subject was regarded by its writer, at the period when the Constitution was depending; and it is believed that the same was the prevailing view then taken of it, that the same view has continued to prevail, and that it does so at this time notwithstanding the eminent exceptions to it.

But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate & party harangues, equally at variance with their duty and their dignity, there have been occasional decisions from the Bench which have incurred serious & extensive disapprobation. Still it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation.

Those who have denied or doubted the supremacy of the judicial power of the U. S. & denounce at the same time nullifying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition & execution of the law; nor to the destruction of all equipoise between the Federal Gov^t. and the State governments, if, whilst the functionaries of the Fed^l Gov^t. are directly or indirectly elected by and responsible to the States & the functionaries of the States are in their appointments & responsibility wholly independent of the U. S. no constitutional control of any sort belonged to the U. S. over the States. Under such an organization it is evident that it would be in the power of the States individually, to pass unauthorized laws, and to carry them into complete effect, anything in the Constⁿ and laws of the U. S. to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect, thro the Legislative Ex. or Judiciary organ of the State, would be equally fatal to the constitutional relation between the two Gov^ts.

Should the provisions of the Constitution as here reviewed be found not to secure the Gov^t. & rights of the States ag^st. usurpations & abuses on the part of the U. S. the final resort within the purview of the Constⁿ. lies in an amendment of the Constⁿ. according to a process applicable by the States.

And in the event of a failure of every constitutional resort, and an accumulation of usurpations & abuses, rendering passive obedience & non-resistence a greater evil, than resistence & revolution, there can remain but one resort, the last of all, an appeal from the cancelled obligations of the constitutional compact, to original rights & the law of self-preservation. This is the ultima ratio under all Gov^t. whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only would have a right, as an extra & ultra constitutional right, to make the appeal.

This brings us to the expedient lately advanced, which claims for a single State a right to appeal ag^st an exercise of power by the Gov^t. of the U. S. decided by the State to be unconstitutional, to the parties of the Const compact, the decision of the State to have the effect of nullifying the act of the Gov^t of the U. S. unless the decision of the State be reversed by three-fourths of the parties.

The distinguished names & high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.

If the doctrine were to be understood as requiring the three-fourths of the States to sustain, instead of that proportion to reverse, the decision of the appealing State, the decision to be without effect during the appeal, it w^d be sufficient to remark, that this extra const^l course might well give way to that marked out by the Const. which authorizes ⅔ of the States to institute and ¾ to effectuate, an amendment of the Const^n. establishing a permanent rule of the highest auth^y in place of an irregular precedent of construction only.

But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the U. S. unless overuled by ¾ of the States.

Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over ¼ of the U. S.—that is, of 7 States out of 24—to give the law and even the Constⁿ to 17 States, each of the 17 having as parties to the Constⁿ. an equal right with each of the 7 to expound it & to insist on the exposition. That the 7 might, in particular instances be right and the 17 wrong, is more than possible. But to establish a positive & permanent rule giving such a power to such a minority over such a majority, would overturn the first principle of free Gov^t. and in practice necessarily overturn the Gov^t. itself.

It is to be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted by the States as a whole, it being a part of the Constitution that not less than ¾ of the States should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases when peculiar interests were at stake, a proportion even of ¾ is distrusted, and unanimity required to make an alteration.

When the Constitution was adopted as a whole, it is certain that there were many parts which if separately proposed, would have been promptly rejected. It is far from impossible, that every part of the Constitution might be rejected by a majority, and yet, taken together as a whole be unanimously accepted. Free constitutions will rarely if ever be formed without reciprocal concessions; without articles conditioned on & balancing each other. Is there a constitution of a single State out of the 24 that w^d bear the experiment of having its component parts submitted to the people & separately decided on?

What the fate of the Constitution of the U. S. would be if a small proportion of States could expunge parts of it particularly valued by a large majority, can have but one answer.

The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the Constitution, have occurred? How many now exist? How many may hereafter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed?

Is it certain that the principle of that mode w^d. not reach farther than is contemplated. If a single State can of right require ¾ of its co-States to overrule its exposition of the Constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimously established, it ought to be unanimously expounded?

The reply to all such suggestions seems to be unavoidable and irresistible, that the Constitution is a compact; that its text is to be expounded according to the provision for expounding it, making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as it may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it.

In favour of the nullifying claim for the States individually, it appears, as you observe, that the proceedings of the Legislature of Virg^a in 98 & 99 ag^st. the Alien and Sedition Acts are much dwelt upon.

It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against in the language used; and it is due to the distinguished individuals who have misconceived the intention of those proceedings to suppose that the meaning of the Legislature, though well comprehended at the time, may not now be obvious to those unacquainted with the cotemporary indications and impressions.

But it is believed that by keeping in view the distinction between the Gov^t. of the States & the States in the sense in which they were parties to the Constⁿ.; between the rights of the parties, in their concurrent and in their individual capacities; between the several modes and objects of interposition ag^st the abuses of power, and especially between interpositions within the purview of the Constⁿ & interpositions appealing from the Constⁿ to the rights of nature paramount to all Constitutions; with these distinctions kept in view, and an attention, always of explantory use, to the views & arguments which were combated, a confidence is felt, that the Resolutions of Virginia, as vindicated in the Report on them, will be found entitled to an exposition, showing a consistency in their parts and an inconsistency of the whole with the doctrine under consideration.

That the Legislature c^d. not have intended to sanction such a doctrine is to be inferred from the debates in the House of Delegates, and from the address of the two Houses to their constitutents on the subject of the resolutions. The tenor of the debates w^ch. were ably conducted and are understood to have been revised for the press by most, if not all, of the speakers, discloses no reference whatever to a constitutional right in an individual State to arrest by force the operation of a law of the U. S. Concert among the States for redress against the alien & sedition laws, as acts of usurped power, was a leading sentiment, and the attainment of a concert the immediate object of the course adopted by the Legislature, which was that of inviting the other States “to concur in declaring the acts to be unconstitutional, and to co-operate by the necessary & proper measures in maintaining unimpaired the authorities rights & liberties reserved to the States respectively & to the people.” That by the necessary and proper measures to be concurrently and co-operatively taken, were meant measures known to the Constitution, particularly the ordinary controul of the people and Legislatures of the States over the Gov^t. of the U. S. cannot be doubted; and the interposition of this controul as the event showed was equal to the occasion.

It is worthy of remark, and explanatory of the intentions of the Legislature, that the words “not law, but utterly null, void, and of no force or effect,” which had followed, in one of the Resolutions, the word “unconstitutional,” were struck out by common consent. Tho the words were in fact but synonymous with “unconstitutional,” yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word unconstitutional alone was retained, as not liable to that danger.

The published address of the Legislature to the people their constituents affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the Gen^l Gov^t, argues the unconstitutionality of the alien & sedition acts, points to other instances in which the const^l limits had been overleaped; dwells upon the dangerous mode of deriving power by implications; and in general presses the necessity of watching over the consolidating tendency of the Fed^l policy. But nothing is s^d. that can be understood to look to means of maintaining the rights of the States beyond the regular ones within the forms of the Const^n.

If any farther lights on the subject c^d be needed, a very strong one is reflected in the answers to the Resolutions by the States which protested ag^st them. The main objection to these, beyond a few general complaints ag^st the inflammatory tendency of the resolutions was directed ag^st the assumed auth^y. of a State Legisl^e to declare a law of the U. S. unconstitutional, which they pronounced an unwarrantable interference with the exclusive jurisdiction of the Supreme C^t of the U. S. Had the resol^ns. been regarded as avowing & maintaining a right in an indiv^l State, to arrest by force the execution of a law of the U. S. it must be presumed that it w^d have been a conspicuous object of their denunciation.

TO MARGARET B. SMITH.1

Montpellier, September, 1830.

I have received, my dear Madam, your very friendly, and I must add, very flattering letter; in which you wish, from my own hand, some reminiscence marking the early relations between M^r. Jefferson and myself, and involving some anecdote concerning him that may have a place in a manuscript volume you are preparing as a legacy for your son.

I was a stranger to M^r. Jefferson till the year 1776, when he took his seat in the first Legislature under the constitution of Virginia then newly formed; being at the time myself a member of that Body, and for the first time a member of any public Body. The acquaintance then made with him was very slight; the distance between our ages being considerable, and other distances much more so. During part of the time whilst he was Governour of the State, a service to which he was called not long after, I had a seat in the Council associated with him. Our acquaintance there became intimate; and a friendship was formed, which was for life, and which was never interrupted in the slightest degree for a single moment.

Among the occasions which made us immediate companions was the trip in 1791, to the borders of Canada to which you refer. According to an understanding between us, the observations in our way through the Northern part of N. York, and the newly settled entirety of Vermont, to be noted by him, were of a miscellaneous cast, and were in part at least noted on the Birch bark of which you speak. The few observations devolving on me, related chiefly to agricultural and economic objects. On recurring to them, I find the only interest they contain is in the comparison they may afford of the infant state with the present growth of the settlements through which we passed, and I am sorry that my memory does not suggest any particular anecdote to which yours must have alluded. The scenes & subjects which had occurred during the session of Congress which had just terminated at our departure from New York, entered of course into our itinerary conversations.

In one of those scenes, a dinner party at which we were both present, I recollect an incident now tho’ not perhaps adverted to then, which as it is characteristic of M^r Jefferson, I will substitute for a more exact compliance with your request.

The new Constitution of the U. States having just been put into operation, forms of Government were the uppermost topics every where, more especially at a convivial board, and the question being started as to the best mode of providing the Executive chief, it was among other opinions, boldly advanced that a hereditary designation was preferable to any elective process that could be devised. At the close of an eloquent effusion against the agitations and animosities of a popular choice and in behalf of birth, as on the whole, affording even a better chance for a suitable head of the Government, M^r. Jefferson, with a smile remarked that he had heard of a university somewhere in which the Professorship of Mathematics was hereditary. The reply, received with acclamation, was a coup de grace to the Anti-Republican Heretic.

Whilst your affection is preparing, from other sources, an instructive bequest for your son, I must be allowed to congratulate him on the precious inheritance he will enjoy in the examples on which his filial feelings will most delight to dwell.

M^rs. Madison failed to obtain the two points she intended for you; but will renew her efforts to fulfil her promise. The only drawing of our House is that by D^r Thornton, and is without the wings now making part of it.

Be pleased, my dear Madam, to express to M^r. Smith the particular esteem I have ever entertained for the lights of his mind, and the purity of his principles; and to accept for him, & yourself my cordial salutations. M^rs. Madison who has lately been seriously ill, but is now recovering, desires me to assure you of her affectionate friendship, and joins me in wishing for the entire circle of your family, every happiness.

TO THOMAS W. GILMER.mad. mss.

Sep^r. 6, 1830.

D^r Sir—

I rec^d. by the last mail yours of Aug. 31. I concur with you entirely in the expediency of promoting as much as possible a sympathy between the incipient and the finishing establishments provided for public education; & in the particular expedient you suggest, of providing for a complete education at the public expence of youths of distinguished capacities, whose parents are too poor to defray the expence. Such a provision made a part of a Bill for the “Diffusion of knowledge,” in the code prepared by Mr. Jefferson Mr. Wythe & Mr. Pendleton, between the years 1776, & 1779.1 The bill proposed to carry the selected youths thro’ the several gradations of schools, from the lowest to the highest, and it deserves consideration, whether, instead of an immediate transition from the primary schools to the University, it would not be better to substitute a preparatory course at some intermediate seminary, chosen with the approbation of the parents or Guardians. One of the recommendations of this benevolent provision in behalf of native genius is, as you observe, the nursery it would form for competent teachers in the primary schools. But it may be questionable whether a compulsive destination of them to that service would, in practice, answer expectation. The other prospects opened to their presumed talents & acquirements might make them reluctant, & therefore the less eligible agents.

As it is probable that the case of the primary schools will be among the objects taken up at the next session of the Legislature, I am glad to find you are turning your attention so particularly to it and that the aid of the Faculty is so attainable. A satisfactory plan for primary schools, is certainly a vital desideratum in our Republics, and is at the same time found to be a difficult one everywhere. It might be useful to consult as far as there may be opportunities, the different modifications presented in the laws of different States. The New England, N. York, & Pennsylvania examples, may possibly afford useful hints. There has lately I believe been a plan discussed, if not adopted by the Legislature of Maryland, where the situation is more analogous than that of the more Northern States, to the situation of Virg^a. The most serious difficulty in all the Southern States results from the character of their population and the want of density in the free part of it. This I take to be the main cause of the little success of the experiment now on foot with us. I hope that some improvements may be devised, that will render it less inadequate to its object; and I should be proud of sharing in the merit. But my age, the unsettled state of my health, my limited acquaintance with the local circumstances to be accommodated, and my inexperience of the principles dispositions and views which prevail in the Legislative Body, unfit me for the flattering co-operation you would assign me. The task, I am persuaded, will be left in hands much better in all those respects. . . .

TO JARED SPARKS.mad. mss.

October 5th, 1830.

Dear Sir—

Your letter of July 16 was duly rec^d. The acknowledgment of it has awaited your return from your tour to Quebec, which I presume has by this time taken place.

Inclosed is the exact copy you wish of the draught of an address prepared for President Washington, at his request in the year 1792, when he meditated a retirement at the expiration of his first term.1 You will observe that (with a few verbal exceptions) it differs from the extract enclosed in your letter only in the provisional paragraphs, which had become inapplicable to the period and plan of his communication to Col. Hamilton.

The N^o of the N. American Review for Jan^y last, being I find, a duplicate, I return it. The pages to which you refer throw a valuable light on a transaction which was taking historical root, in a shape unjust as well as erroneous. Did you ever notice the “Life of M^r. Jay” in Delaplaine’s biographical works2 ? The materials of it were evidently derived from the papers, if not the pen of M^r. Jay, and are marked by the misconceptions into which he had fallen. It may be incidentally noted as one of the confirmations of the fallibility of Hamilton’s memory in allotting the N^os in the “Federalist” to the respective writers, that one of them, N^o 64, which appears by Delaplaine, to have been written by Mr. Jay, as it certainly was, is put on the list of Mr. Hamilton, as was not less certainly the case with a number of others, written by another hand.

Previous to the rec^t of your letter I had rec^d one from Mr. Monroe, to whom I had mentioned the liberty I had taken with Rayneval’s memoir. I inclose the part of his letter answering that part of mine.

TO HENRY CLAY.mad. mss.

Montp^r., Oct^r. 9, 1830.

Dear Sir—

I have just been favoured with yours of the 22d ult. inclosing a copy of your address delivered at Cincinnati.

Without concurring in everything that is said I feel what is due to the ability and eloquence which distinguish the whole.1 The rescue of the Resolutions of Kentucky in -98 & -99, from the misconstructions of them, was very apropos; that authority being particularly relied on as an ægis to the nullifying doctrine which, notwithstanding its hideous aspect & fatal tendency, has captivated so many honest minds. In a late letter to one of my correspondents I was led to the like task of vindicating the proceedings of Virginia in those years. I would gladly send you a copy, if I had a suitable one. But as the letter is appended to the N. Am. Review for this month, you will probably have an early opportunity of seeing it.1

With my thanks, sir, for your obliging communication, I beg you to accept assurances of my great & cordial esteem, in which Mrs. Madison joins me, as I do her, in the best regards which she offers to Mrs. Clay.

TO ANDREW STEVENSON.mad. mss.

montp^r., Nov^r. 27, 1830.

D^r Sir

I have rec^d your very friendly favor of the 20th instant, referring to a conversation when I had lately the pleasure of a visit from you, in which you mentioned your belief that the terms “common defence & general welfare” in the 8th section of the first article of the Constitution of the U. S. were still regarded by some as conveying to Congress a substantive & indefinite power, and in which I communicated my views of the introduction and occasion of the terms, as precluding that comment on them, and you express a wish that I would repeat those views in the answer to your letter.2

However disinclined to the discussion of such topics at a time when it is so difficult to separate in the minds of many, questions purely constitutional from the party polemics of the day, I yield to the precedents which you think I have imposed on myself, & to the consideration that without relying on my personal recollections, which your partiality over-values, I shall derive my construction of the passage in question from sources of information & evidence known or accessible to all who feel the importance of the subject, and are disposed to give it a patient examination.

In tracing the history & determining the import of the terms “common defence & general welfare,” as found in the text of the Constitution, the following lights are furnished by the printed Journal of the Convention which formed it:

The terms appear in the general propositions offered May 29, as a basis for the incipient deliberations, the first of which “Resolved that the articles of the Confederation ought to be so corrected & enlarged as to accomplish the objects proposed by their institution, namely, common defence, security of liberty, and general welfare.” On the day following, the proposition was exchanged for, “Resolved that a Union of the States merely Federal will not accomplish the objects proposed by the Articles of the Confederation, namely, common defence, security of liberty and general welfare.”

The inference from the use here made of the terms & from the proceedings on the subsequent propositions is, that altho common defence & general welfare were objects of the Confederation, they were limited objects, which ought to be enlarged by an enlargement of the particular powers to which they were limited, and to be accomplished by a change in the structure of the Union from a form merely Federal to one partly national; and as these general terms are prefixed in the like relation to the several legislative powers in the new charter, as they were in the old, they must be understood to be under like limitations in the new as in the old.

In the course of the proceedings between the 30^th of Ma^y and the 6^th of Aug^t., the terms common defence & general welfare, as well as other equivalent terms, must have been dropped; for they do not appear in the Draft of a Constitution, reported on that day by a committee appointed to prepare one in detail, the clause in which those terms were afterward inserted, being in the Draft simply, “The Legislature of the U. S. shall have power to lay & collect taxes duties, imposts, & excises.”

The manner in which the terms became transplanted from the old into the new system of Government, is explained by a course somewhat adventitiously given to the proceedings of the Convention.1

On the 18^th of Aug^st among other propositions referred to the committee which had reported the draft, was one “to secure the payment of the public debt” and

On the same day was appointed a committee of eleven members, (one from each State) “to consider the necessity & expediency of the debts of the several States, being assumed by the U. States.”

On the 21^st of Aug^st this last committee reported a clause in the words following “The Legislature of the U. States shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U. States, as the debts incurred by the several States during the late war, for the common defence and general welfare; conforming herein to the 8^th of the Articles of Confederation, the language of which is, that “all charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the U. S. in Congress assembled, shall be defrayed out of a common Treasury” &c.

On the 22^d of Aug^st. the committee of five reported among other additions to the clause giving power “to lay and collect taxes imposts & excises,” a clause in the words following, “for payment of the debts and necessary expenses,” with a proviso qualifying the duration of Revenue laws.

This Report being taken up, it was moved, as an amendment, that the clause should read, “The Legislature shall fulfill the engagements and discharge the debts of the U. States”

It was then moved to strike out “discharge the debts,” and insert, “liquidate the claims,” which being rejected, the amendment was agreed to as proposed, viz: “The Legislature shall fulfil the engagements and discharge the debts of the United States.”

On the 23^d. of Aug^st the clause was made to read “The Legislature shall fulfil the engagements and discharge the debts of the U. States, and shall have the power to lay & collect taxes duties imposts & excises’ the two powers relating to taxes & debts being merely transposed.

On the 25^th of August the clause was again altered so as to read “All debts contracted and engagements entered into by or under the authority of Congress, [the Revolutionary Congress] shall be as valid under this constitution as under the Confederation.”

This amendment was followed by a proposition, referring to the powers to lay & collect taxes, &c. and to discharge the [old debts] to add, “for payment of said debts, and for defraying the expenses that shall be incurred for the common defence and general welfare.” The proposition was disagreed to, one State only voting for it.

Sep^r 4. The committee of eleven reported the following modification—“The Legislature shall have power to lay & collect taxes duties imposts and excises, to pay the debts and provide for the common defence & general welfare;” thus retaining the terms of the Articles of Confederation, & covering by the general term “debts,” those of the old Congress.

A special provision in this mode could not have been necessary for the debts of the new Congress: For a power to provide money, and a power to perform certain acts of which money is the ordinary & appropriate means, must of course carry with them a power to pay the expense of performing the acts. Nor was any special provision for debts proposed, till the case of the Revolutionary debts was brought into view; and it is a fair presumption from the course of the varied propositions which have been noticed, that but for the old debts, and their association with the terms “common defence & general welfare,” the clause would have remained as reported in the first draft of a Constitution, expressing generally, “a power in Congress to lay and collect taxes duties imposts & excises;” without any addition of the phrase, “to provide for the common defence & general welfare.” With this addition, indeed, the language of the clause being in conformity with that of the clause in the Articles of Confederation, it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose that the terms in question would not have been introduced but for the introduction of the old debts, with which they happened to stand in a familiar tho’ inoperative relation. Thus introduced, however, they passed undisturbed thro’ the subsequent stages of the Constitution.

If it be asked why the terms “common defence & general welfare,” if not meant to convey the comprehensive power which taken literally they express, were not qualified & explained by some reference to the particular powers subjoined, the answer is at hand, that altho’ it might easily have been done, and experience shows it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by its identity with the harmless character attached to it in the instrument from which it was borrowed.

But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labor was employed in enumerating the particular powers, and in defining and limiting their extent?

The variations & vicissitudes in the modification of the clause in which the terms “common defence & general welfare” appear, are remarkable, and to be no otherwise explained than by differences of opinion concerning the necessity or the form of a constitutional provision for the debts of the Revolution; some of the members apprehending improper claims for losses, by depreciated emissions of bills of credit; others an evasion of proper claims if not positively brought within the authorized functions of the new Gov^t, and others again considering the past debts of the U. States as sufficiently secured by the principle that no change in the Gov^t could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation.

But it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms “common defence & general welfare,” unless we were so to understand the proposition containing them made on Aug. 25, which was disagreed to by all the States except one.

The obvious conclusion to which we are brought is, that these terms copied from the Articles of Confederation, were regarded in the new as in the old instrument, merely as general terms, explained & limited by the subjoined specifications; and therefore requiring no critical attention or studied precaution.

If the practice of the Revolutionary Congress be pleaded in opposition to this view of the case, the plea is met by the notoriety that on several accounts the practice of that Body is not the expositor of the “Articles of Confederation.” These articles were not in force till they were finally ratified by Maryland in 1781. Prior to that event, the power of Congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the States. After that event, habit and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority; which was the more readily overlooked, as the members of the body held their seats during pleasure, as its acts, particularly after the failure of the Bills of Credit, depended for their efficacy on the will of the States; and as its general impotency became manifest. Examples of departure from the prescribed rule, are too well known to require proof. The case of the old Bank of N. America might be cited as a memorable one. The incorporating ordinance grew out of the inferred necessity of such an Institution to carry on the war, by aiding the finances which were starving under the neglect or inability of the States to furnish their assessed quotas. Congress was at the time so much aware of the deficient authority, that they recommended it to the State Legislatures to pass laws giving due effect to the ordinance; which was done by Pennsylvania and several other States. In a little time, however, so much dissatisfaction arose in Pennsylvania, where the bank was located, that it was proposed to repeal the law of the State in support of it. This brought on attempts to vindicate the adequacy of the power of Congress to incorporate such an Institution. Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published a small pamphlet, entitled “Considerations on the Bank of N. America,” in which he endeavoured to derive the power from the nature of the union in which the Colonies were declared & became independent States, and also from the tenor of the “Articles of Confederation” themselves.1 But what is particularly worthy of notice is, that with all his anxious search in those articles for such a power, he never glanced at the terms “common defence & general welfare” as a source of it. He rather chose to rest the claim on a recital in the text, “that for the more convenient management of the general interests of the United States, Delegates shall be annually appointed to meet in Congress, which, he said, implied that the United States had general rights, general powers, and general obligations, not derived from any particular State, nor from all the particular States taken separately, but resulting from the union of the whole,” these general powers not being controuled by the Article declaring that each State retained all powers not granted by the articles, because “the individual States never possessed & could not retain a general power over the others.”

The authority & argument here resorted to, if proving the ingenuity & patriotic anxiety of the author on one hand, show sufficiently on the other, that the terms common defence & general welfare c^d not, according to the known acceptation of them, avail his object.

That the terms in question were not suspected in the Convention which formed the Constitution of any such meaning as has been constructively applied to them may be pronounced with entire confidence. For it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of Federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.

Consider for a moment the immeasurable difference between the Constitution limited in its powers to the enumerated objects; and expounded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other, the one possessing powers confined to certain specified cases, the other extended to all cases whatsoever; for what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary & proper to carry these powers into execution; all such provisions and laws superseding, at the same time, all local laws & constitutions at variance with them. Can less be said, with the evidence before us furnished by the Journal of the Convention itself, than that it is impossible that such a Constitution as the latter would have been recommended to the States by all the members of that Body whose names were subscribed to the instrument.

Passing from this view of the sense in which the terms common defence & general welfare were used by the Framers of the Constitution, let us look for that in which they must have been understood by the Conventions, or rather by the people, who thro’ their Conventions, accepted & ratified it. And here the evidence is if possible still more irresistible, that the terms could not have been regarded as giving a scope to federal legislation, infinitely more objectionable than any of the specified powers which produced such strenuous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.

Without recurring to the published debates of those Conventions, which, as far as they can be relied on for accuracy, would it is believed not impair the evidence furnished by their recorded proceedings, it will suffice to consult the list of amendments proposed by such of the Conventions as considered the powers granted to the new Government too extensive or not safely defined.

Besides the restrictive & explanatory amendments to the text of the Constitution it may be observed, that a long list was premised under the name and in the nature of “Declarations of Rights;” all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number & nature of the amendments proposed to be made specific & integral parts of the Constitutional text.

No less than seven States, it appears, concurred in adding to their ratifications a series of amendments w^ch they deemed requisite. Of these amendments, nine were proposed by the Convention of Massachusetts, five by that of S. Carolina, twelve by that of N. Hampshire, twenty by that of Virginia, thirty-three by that of N. York, twenty-six by that of N. Carolina, twenty-one by that of R. Island.

Here are a majority of the States, proposing amendments, in one instance thirty-three by a single State; all of them intended to circumscribe the powers granted to the General Government, by explanations restrictions or prohibitions, without including a single proposition from a single State referring to the terms common defence & general welfare; which if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range, than all the powers objected to put together; and that the terms should have passed altogether unnoticed by the many eyes w^ch saw danger in terms & phrases employed in some of the most minute & limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted that the terms were harmless, because explained & limited, as in the “Articles of Confederation,” by the enumerated powers which followed them.

A like demonstration, that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of the first Congress, when the subject of amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms “common defence and general welfare” unnoticed in the long list of amendments brought forward in the outset; but the Journals of Cong^s. show that, in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance & silence on such an occasion, and among so many members who belonged to the part of the nation which called for explanatory & restrictive amendments, and who had been elected as known advocates for them, cannot be accounted for without supposing that the terms “common defence & general welfare” were not at that time deemed susceptible of any such construction as has since been applied to them.

It may be thought, perhaps, due to the subject, to advert to a letter of Oct^r. 5, 1787, to Samuel Adams, and another of Oct. 16 of the same year to the Governor of Virginia, from R. H. Lee, in both which it is seen that the terms had attracted his notice, and were apprehended by him “to submit to Congress every object of human Legislation.” But it is particularly worthy of Remark, that, although a member of the Senate of the U. States, when amendments of the Constitution were before that house, and sundry additions & alterations were there made to the list sent from the other, no notice was taken of these terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member at the first view of the Constitution, & before it had been fully discussed & elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them, and therefore needed no explanatory precaution ag^st. it.

Allow me, my dear sir, to express on this occasion, what I always feel, an anxious hope that as our Constitution rests on a middle ground between a form wholly national and one merely federal, and on a division of the powers of Gov^t. between the States in their united character and in their individual characters, this peculiarity of the system will be kept in view, as a key to the sound interpretation of the instrument, and a warning ag^st any doctrine that would either enable the States to invalidate the powers of the U. States, or confer all power on them.

I close these remarks which I fear may be found tedious with assurances of my great esteem, and best regards.1

TO JAMES K. TEFFT.mad. mss.

Dec^r. 3, 1830.

I have rec^d. Sir, your letter of Nov^r. 17 accompanied by one from the Rev^d. M^r. Sprague and in compliance with your request,1 I enclose autographs of certain individuals such as you refer to. I would willingly have given with their names, more of their writings, but could not do it without mutilating the sense, or embracing matter of a private nature. There is a difficulty, particularly where the letter does not close on the first or third page. Several other autographs w^d. have been added those of Mr. Pat. Henry, George Mason & Geo. Wythe, but I found that their letters on my files, had been taxed to the full in that way.1

I avail myself Sir of your proferred kindness, by asking you to procure for me, if it can be conveniently done, such of the numbers of the “Georgian,” preceding No. 124, Ap^l. 21, 1828, & succeeding No. 129, Ap^l. 26, 1828, as contain notes of Maj^r. Pierce in that Convention; forwarding with them the charge of the Editors, which will be remitted to them. It will be matter of curiosity at least to compare the notes taken on the same subjects by different members of the Body.

If M^r. Sprague be still with you, be pleased to make known to him that his letter was rec^d. & duly appreciated, and to accept for yourself my respects & salutations.

Autographs sent of J. Adams J. Q. Adams James Monroe Ed. Pendleton R. H. Lee Alex^r Hamilton E. Gerry Alb. Gallatin H. Dearborn Henry Lee (Rev^y officer) Jacob Brown (Maj^r. General) A. J. Dallas Wm. Eustis William Pinkney (of Mary^d) Rob. R. Livingston DeWitt Clinton.

[1 ]Copy of the original kindly contributed by W. H. Gibbes, Esq., of Columbia, S. C.

[2 ]The report was introduced in the House by McDuffie, April 13. It may be found in Cong. Debates, 21st Cong. 1st Session, p. 103, appendix.

[1 ]The pamphlet was Propositions for amending the Constitution of the United States, providing for the election of President and Vice-President, and guarding against the undue exercise of Executive influence, patronage and power. Washington, 1830. It was a revival of Hillhouse’s proposed amendments to the constitution offered in the Senate in 1808.

[1 ]This letter was printed by Edward Everett in the North American Review, for October, 1830, vol. 31, p. 537.

[2 ]Having received a copy of Senator Robert Y. Hayne’s speeches on the constitution which began January 19, 1830, Madison wrote to him, the draft being dated “Apr. (say 3d or 4th).”

“I recd in due time your favor enclosing your two late speeches, and requesting my views of the subject they discuss. The speeches could not be read without leaving a strong impression of the ability & eloquence which have justly called forth the eulogies of the public. But there are doctrines espoused in them from which I am constrained to dissent. I allude particularly to the doctrine which I understand to assert that the States perhaps their Governments have, singly, a constitutional right to resist & by force annul within itself acts of the Government of the U. S. which it deems unauthorized by the Constitution of the U. S.; although such acts be not within the extreme cases of oppression, which justly absolve the State from the Constitutional compact to which it is a party.

“It appears to me that in deciding on the character of the Constitution of the U. S. it is not sufficiently kept in view that being an unprecedented modification of the powers of Govt it must not be looked at thro’ the refracting medium either of a consolidated Government, or of a confederated Govt; that being essentially different from both, it must be its own interpreter according to its text and the facts of the case.

“Its characteristic peculiarities are 1. the mode of its formation. 2. its division of the supreme powers of Govt. between the States in their united capacity, and the States in their individual capacities.

“1. It was formed not by the Governments of the States as the Federal Government superseded by it was formed; nor by a majority of the people of the U. S. as a single Community, in the manner of a consolidated Government.

“It was formed by the States, that is by the people of each State, acting in their highest sovereign capacity thro’ Conventions representing them in that capacity, in like manner and by the same authority as the State Constitutions were formed; with this characteristic & essential difference that the Constitution of the U. S. being a compact among the States that is the people thereof making them the parties to the compact over one people for specified objects can not be revoked or changed at the will of any State within its limits as the Constitution of a State may be changed at the will of the State, that is the people who compose the State & are the parties to its constitution & retained their powers over it. The idea of a compact between the Governors & the Governed was exploded with the Royal doctrine that Government was held by some tenure independent of the people.

“The Constitution of the U. S. is therefore within its prescribed sphere a Constitution in as strict a sense of the term as are the Constitutions of the individual States, within their respective spheres.

“2. And that it divides the supreme powers of Govt. between the two Governments is seen on the face of it; the powers of war & taxation, that is of the sword & the purse, of commerce of treaties &c. vested in the Govt. of the U. S. being of as high a character as any of the powers reserved to the State Govts.

“If we advert to the Govt of the U. S. as created by the Constitution it is found also to be a Govt in as strict a sense of the term, within the sphere of its powers, as the Govts created by the Constitutions of the States are within their respective spheres. It is like them organized into a Legislative, Executive & Judicial Dept. It has, like them, acknowledged cases in which the powers of those Departments are to operate and the operation is to be the same in both; that is directly on the persons & things submitted to their power. The concurrent operation in certain cases is one of the features constituting the peculiarity of the system.

“Between these two Constitutional Govts, the one operating in all the States, the others operating in each respectively; with the aggregate powers of Govt divided between them, it could not escape attention, that controversies concerning the boundary of Jurisdiction would arise, and that without some adequate provision for deciding them, conflicts of physical force might ensue. A political system that does not provide for a peaceable & authoritative termination of occurring controversies, can be but the name & shadow of a Govt the very object and end of a real Govt. being the substitution of law & order for uncertainty confusion & violence.

“That a final decision of such controversies, if left to each of 13 State now 24 with a prospective increase, would make the Constitution & laws of the U. S. different in different States, was obvious; and equally obvious that this diversity of independent decisions must disorganize the the Government of the Union, and even decompose the Union itself.

“Against such fatal consequences the Constitution undertakes to guard 1. by declaring that the Constitution & laws of the States in their united capacity shall have effect, anything in the Constitution or laws of any State in its individual capacity to the contrary notwithstanding, by giving to the Judicial authority of the U. S. an appellate supremacy in all cases arising under the Constitution; & within the course of its functions, arrangements supposed to be justified by the necessity of the case; and by the agency of the people & Legislatures of the States in electing & appointing the Functionaries of the Common Govt. whilst no corresponding relation existed between the latter and the Functionaries of the States.

“2. Should these provisions be found notwithstanding the responsibility of the functionaries of the Govt. of the U. S. to the Legislatures & people of the States not to secure the State Govts against usurpations of the Govt. of the United States there remains within the purview of the Constn. an impeachment of the Executive & Judicial Functionaries, in case of their participation in the guilt, the prosecution to depend on the Representatives of the people in one branch, and the trial on the Representatives of the States in the other branch of the Govt. of the U. S.

“3. The last resort within the purview of the Constn is the process of amendment provided for by itself and to be executed by the States.

“Whether these provisions taken together be the best that might have been made; and if not, what are the improvements, that ought to be introduced, are questions altogether distinct from the object presented by your communication, which relates to the Constitution as it stands.

“In the event of a failure of all these Constitutional resorts against usurpations and abuses of power and of an accumulation thereof rendering passive obedience & nonresistance a greater evil than resistance and revolution, there can remain but one resort, the last of all, the appeal from the cancelled obligation of the Constitutional compact to original rights and the law of self-preservation. This is the Ultima ratio, under all Governments, whether consolidated, confederated, or partaking of both those characters. Nor can it be doubted that in such an extremity a single State would have a right, tho’ it would be a natural not a constitutional Right to make the appeal. The same may be said indeed of particular portions of any political community whatever so oppressed as to be driven to a choice between the alternative evils.

“The proceedings of the Virginia Legislature (occasioned by the Alien and Sedition Acts) in which I had a participation, have been understood it appears, as asserting a Constitutional right in a single State to nullify laws of the U. S. that is to resist and prevent by force the execution of them, within the State.

“It is due to the distinguished names who have given that construction of the Resolutions and the Report on them to suppose that the meaning of the Legislature though expressed with a discrimination and fulness sufficient at the time may have been somewhat obscured by an oblivion of contemporary indications and impressions. But it is believed that by keeping in view distinctions (an inattention to which is often observable in the ablest discussions of the subjects embraced in those proceedings) between the Governments of the States & the States in the sense in which they were parties to the Constitution; between the several modes and objects of interposition agst the abuses of Power; and more especially between interpositions within the purview of the Constitution, and interpositions appealing from the Constitution to the rights of nature, paramount to all Constitutions; with these distinctions kept in view, and an attention always of explanatory use to the views and arguments which are combated, a confidence is felt that the Resolutions of Virga as vindicated in the Report on them, are entitled to an exposition shewing a consistency in their parts, and an inconsistency of the whole with the doctrine under consideration.

“On recurring to the printed Debates in the House of Delegates on the occasion, which were ably conducted, and are understood to have been, for the most part at least, revised by the Speakers, the tenor of them does not disclose any reference to a constitutional right in an individual State to arrest by force the operation of a law of the U. S. Concert among the States for redress agst the Alien & Sedition laws as acts of usurped power, was a leading sentiment, and the attainment of a Concert the immediate object of the course adopted, which was an invitation to the other States ‘to concur in declaring the acts to be unconstitutional, and to co-operate by the necessary & proper measures in maintaining unimpaired the authorities rights and liberties reserved to the States respectively or to the people.’ That by the necessary & proper measures to be concurrently & co-operatively taken were meant measures known to the Constitution, particularly the control of the Legislatures and people of the States over the Cong. of the U. S. cannot well be doubted.

“It is worthy of remark, and explanatory of the intentions of the Legislature, that the words ‘and not law, but utterly null void & of no power or effect’* which in the Resolutions before the House followed the word unconstitutional, were near the close of the debate stricken out by common consent. It appears that the words had been regarded as only surplusage by the friends of the Resolution, but lest they should be misconstrued into a nullifying import instead of a declaration of opinion, the word unconstitutional alone was retained, as more safe agst. that error. The term nullification to which such an important meaning is now attached, was never a part of the Resolutions and appears not to have been contained in the Kentucky Resolutions as originally passed, but to have been introduced at an after date.

“Another and still more conclusive evidence of the intentions of the Legislature is given in their Address to their Constituents accompanyg. the publication of their Resoln. The address warns them agst the encroaching spirit of the Gen Govt.; argues the unconstitutionality of the Alien & Sedition laws, enumerates the other instances in which the Constitutional limits had been overleaped; dwells on the dangerous mode of deriving power by implication; and in general presses the necessity of watching over the consolidating tendency of the Fedr. policy. But nothing is said that can be understood to look to means of maintaing the rights of the States beyond the regular ones within the forms of the Constitution.

“If any further lights on the subject could be needed a very strong one is reflected from the answers given to the Resolutions by the States who protested agst. them. Their great objection, with a few undefined complaints of the spirit & character of the Resolutions, was directed agst the assumed authority of a State Legislature to declare a law of the U. S. to be unconstitutional which they considered an unwarrantable interference with the exclusive jurisdiction of the Supreme Court of the U. S. Had the Resolutions been regarded as avowing & maintaining a right in an individual State to arrest by force the execution of a law of the U. S. it must be presumed that it would have been a pointed and conspicuous object of their denunciation.

“In this review I have not noticed the idea entertained by some that disputes between the Govt of the U. S. and those of the individual States may & must be adjusted by negotiation, as between independent Powers.

“Such a mode as the only one of deciding such disputes would seem to be as expressly at variance with the language and provisions of the Constitution as in a practical view it is pregnant with consequences subversive of the Constitution. It may have originated in a supposed analogy to the negociating process in cases of disputes between separate branches or Departments of the same Govt. but the analogy does not exist. In the case of disputes between independent parts of the same Govt neither of them being able to consummate its pretensions, nor the Govt to proceed without a co-operation of the several parts necessity brings about an adjustment. In disputes between a State Govt and the Govt. of the U. S. the case is both theoretically & practically different; each party possessing all the Departments of an organized Governmt Legislative Ex. & Judl., and having each a physical force at command.

“This idea of an absolute separation & independence between the Govt. of the U. S. and the State Govts as if they belonged to different nations alien to each other has too often tainted the reasoning applied to Constitutional questions. Another idea not less unsound and sometimes presenting itself is, that a cession of any part of the rights of sovereignty is inconsistent with the nature of sovereignty, or at least a degradation of it. This would certainly be the case if the cession was not both mutual & equal, but when there is both mutuality & equality there is no real sacrifice on either side, each gaining as much as it grants, and the only point to be considered is the expediency of the compact and that to be sure is a point that ought to be well considered. On this principle it is that Treaties are admissible between Independent powers, wholly alien to each other, although privileges may be granted by each of the parties at the expense of its internal jurisdiction. On the same principle it is that individuals entering into the social State surrender a portion of their equal rights as men. If a part only made the surrender, it would be a degradation; but the surrenders being mutual, and each gaining as much authority over others as is granted to others over him, the inference is mathematical that in theory nothing is lost by any; however different the result may be in practice.

“I am now brought to the proposal which claims for the States respectively a right to appeal agst an exercise of power by the Govt. of the U. S. which by the States is decided to be unconstitutional, to a final decision by ¾ of the parties to the Constitution. With every disposition to take the most favorable view of this expedient that a high respect for its Patrons could prompt I am compelled to say that it appears to be either not necessary or inadmissible.

“I take for granted it is not meant that pending the appeal the offensive law of the U. S. is to be suspended within the State. Such an effect would necessarily arrest its operation everywhere, a uniformity in the operation of laws of the U. S. being indispensable not only in a Constitutional and equitable, but in most cases in a practicable point of view, and a final decision adverse to that of the Appellant State would afford grounds to all kinds of complaint which need not be traced.

“But aside from those considerations, it is to be observed that the effect of the appeal will depend wholly on the form in which the case is proposed to the Tribunal which is to decide it.

“If ¾ of the States can sustain the State in its decision it would seem that this extra constitutional course of proceeding might well be spared; inasmuch as can institute and ¾ can effectuate an amendment of the Constitution, which would establish a permanent rule of the highest authority, instead of a precedent of construction only.

“If on the other hand ¾ are required to reverse the decision of the State it will then be in the power of the smallest fraction over ¼ (of 7 States for example out of 24) to give the law to 17 States, each of the 17 having as parties to the Constitutional compact an equal right with each of the 7 to expound & insist on its exposition. That the 7 might in particular cases be right and the 17 wrong, is quite possible. But to establish a positive & permanent rule giving such a power to such a minority, over such a majority, would overturn the first principle of a free Government and in practice could not fail to overturn the Govt. itself.

“It must be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted as a whole, it being a part of the Constitution that not less than ¾ should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake a majority even of ¾ are distrusted and a unanimity required to make any change affecting those cases.

“When the Constitution was adopted as a whole, it is certain that there are many of its parts which if proposed by themselves would have been promptly rejected. It is far from impossible that every part of a whole would be rejected by a majority and yet the whole be unanimously accepted. Constitutions will rarely, probably never be formed without mutual concessions, without articles conditioned on & balancing each other. Is there a Constitution of a single State out of the 24 that would bear the experiment of having its component parts submitted to the people separately, and decided on according to their insulated merits.

“What the fate of the Constitution of the U. S. would be if a few States could expunge parts of it most valued by the great majority, and without which the great majority would never have agreed to it, can have but one answer.

“The difficulty is not removed by limiting the process to cases of construction. How many cases of that sort involving vital texts of the Constitution, have occurred? how many now exist? How many may hereafter spring up? How many might be plausibly enacted, if entitled to the privilege of a decision in the mode proposed.

“Is it certain that the principle of that mode may not reach much farther than is contemplated? If a single State can of right require ¾ of its Co-States to overrule its exposition of the Constitution, because that proportion is authorized to amend it, is the plea less plausible that as the Constitution was unanimously formed it ought to be unanimously expounded.

“The reply to all such suggestions must be that the Constitution is a compact; that its text is to be expounded according to the provision for it making part of that Compact; and that none of the parties can rightfully violate the expounding provision, more than any other part. When such a right accrues as may be the case, it must grow out of abuses of the Constitution amounting to a release of the sufferers from their allegiance to it.

“Will you permit me Sir to refer you to Nos. 39 & 44 of the Federalist Edited at Washington by Gideon, which will shew the views taken on some points of the Constitution at the period of its adoption. I refer to that Edition because none preceding it are without errors in the names prefixed to the several papers as happens to be the case in No. 51 for which you suppose Col: Hamilton to be responsible. The errors were occasioned by a memorandum of his penned probably in haste, & partly in a lumping way. It need not be remarked that they were pure inadvertences.

“I fear Sir I have written you a letter the length of which may accord as little with your patience, as I am sorry to foresee that the scope of parts of it must do with your judgment. But a naked opinion did not appear respectful either to the subject or to the request with which you honored me, and notwithstanding the latitude given to my pen, I am not unaware that the views it presents may need more of development in some instances, if not more exactness of discrimination in others, than I could bestow on them. The subject has been so expanded and recd. such ramifications & refinements, that a full survey of it is a task agst which my age alone might justly warn me.

“The delay Sir in making the acknowledgments I owe you was occasioned for a time by a crowd of objects which awaited my return from a long absence at Richmond, and latterly by an indisposition from which I am not yet entirely recovered. I hope you will be good eno’ to accept these apologies, and with them assurances of my high esteem & my cordial salutations, in which Mrs. M. begs to be united with me, as I do with her in a respectful tender of them to Mrs. Hayne.”—Chic. Hist. Soc. MSS.

August 20, 1830, Madison wrote to Everett:

“There is not I am persuaded the slightest ground for supposing that Mr. Jefferson departed from his purpose not to furnish Kentucky with a set of Resolutions for the year ’99. It is certain that he penned the Resolutions of ’98, and, probably in the terms in which they passed. It was in those of ’99 that the word ‘nullification’ appears.

“Finding among my pamphlets a copy of the debates in the Virginia House of Delegates on the Resolutions of ’98, and one of an address of the two Houses to their constituents on the occasion, I enclose them for your perusal; and I add another, though it is less likely to be new to you, the ‘Report of a Committee of the S. Carolina House of Representatives, Decr. 9, 1828,’ in which the nullifying doctrine is stated in the precise form in which it is now asserted. There was a protest by the minority in the Virginia Legislature of ’98 against the Resolutions, but I have no copy. The matter of it may be inferred from the speeches in the Debates. I was not a member in that year, though the penman of the Resolutions, as now supposed.”—Mad. MSS.

Again on September 10, 1830, he wrote to Everett:

“Since my letter in which I expressed a belief that there was no ground for supposing that the Kentucky Resolutions of 1799, in which the term ‘nullification’ appears, were drawn by Mr. Jefferson, I infer from a manuscript paper containing the term just noticed, that altho he probably had no agency in the draft, nor even any knowledge of it at the time, yet that the term was borrowed from that source. It may not be safe, therefore, to rely on his to Mr. W. C. Nicholas printed in his Memoir & Correspondence, as a proof that he had no connection with or responsibility for the use of such term on such an occasion. Still I believe that he did not attach to it the idea of a constitutional right in the sense of S. Carolina, but that of a natural one in cases justly appealing to it.”—Mad. MSS.

On September 23, 1830, he wrote to Nicholas P. Trist:

“In a letter, lately noticed, from Mr Jefferson, dated November 17, 1799, he ‘incloses me a copy of the draught of the Kentucky Resolves’, (a press copy of his own manuscript). Not a word of explanation is mentioned. It was probably sent, and possibly at my request, in consequence of my being a member elect of the Virga Legislature of 1799, which would have to vindicate its contemporary Resolns. of -98. It is remarkable that the paper differs both from the Kentucky Resolutions of -98, & from those of -99. It agrees with the former in the main and must have been the pattern of the Resolns. of that year, but contains passages omitted in them, which employ the terms nullification & nullifying; and it differs in the quantity of matter from the Resolutions of -99, but agrees with them in a passage which employs that language, and would seem to have been the origin of it. I conjecture that the correspondent in Kentucky, Col. George Nicholas, probably might think it better to leave out particular parts of the draught than risk a misconstruction or misapplication of them; and that the paper might, notwithstanding, be within the reach & use of the Legislature of -99, & furnish the phraseology containing the term ‘nullification.’ Whether Mr. Jefferson had noted the difference between his draught & the Resolns of -98 (he could not have seen those of -99, which passed Novr. 14,) does not appear. His files, particularly his correspondence with Kentucky, must throw light on the whole subject. This aspect of the case seems to favor a recall of the communication if practicable. Though it be true that Mr Jefferson did not draught the Resolutions of -99, yet a denial of it, simply, might imply more than wd. be consistent with a knowledge of what is here stated.”—Mad. MSS.

See Warfield’s Kentucky Resolutions of 1798; also, for Jefferson’s correspondence, his Writings (P. L. Ford, Federal Edition) viii., 57, et seq.

[1 ]Copy of the original among the family papers of the late J. Henley Smith, Esq., of Washington. On the same subject Madison wrote to Henry St. George Tuckner, April 30, 1830, giving the same information and adding:

“Mr. Jefferson’s letters to me amount to hundreds. But they have not been looked into for a longtime, with the exception of a few of latter dates. As he kept copies of all his letters throughout the period, the originals of chose to me exist of course elsewhere.

“My eye fell on the inclosed paper. It is already in obscurity, and may soon be in oblivion. The Ceracchi named was an artist celebrated for his genius, & was thought a rival in embryo to Canova & doomed to the guillotine as the author or patron, guilty or suspected, of the infernal machine for destroying Bonaparte. I knew him, well, having been a lodger in the same house with him, and much teased by his eager hopes on wch I constantly threw cold water, of obtaining the aid of Congress for his grand project. Having failed in this chance, he was advised by me & others to make the experiment of subscriptions, with the most auspicious names heading the list, and considering the general influence of Washington and the particular influence of Hamilton on the corps of speculators then suddenly enriched by the funding system, the prospect was encouraging. But just as the circular address was about to be despatched, it was put into his head that the scheme, was merely to get rid of his importunities, and being of the genus irritabile, suddenly went off in anger and disgust, leaving behind him heavy drafts on Genl. W. Mr. Jefferson &c. &c. for the busts &c. he had presented to them. His drafts were not the effect of avarice, but of his wants, all his resources having been exhausted in the tedious pursuit of his object. He was an enthusiastic worshipper of Liberty and Fame, and his whole soul was bent on securing the latter by rearing a monument to the Former, which he considered as personified in the American Republic. Attempts were made to engage him for a statue of Genl. W. but he wd. not stoop to that.”—Mad. Mss. The enclosure was Ceracchi’s circular concerning his proposed monument. A photograph of his bust of Madison is the frontispiece of this edition of his writings.

[1 ]See the bill in Jefferson’s Writings (P. L. Ford, Federal Edition) ii., 414.

[1 ]The draft may be seen ante, Vol. VI., p. 113, n.

[2 ]Delaplaine’s Repository of the Lives and Portraits of Distinguished Americans. Philadelphia, 1818.

[1 ]“At the epoch of 1798-9, I had just attained my majority, and although I was too young to share in the public councils of my country, I was acquainted with many of the actors of that memorable period; I knew their views, and formed and freely expressed my own opinions on passing events.” He insisted that the Kentucky and Virginia resolutions contemplated action to correct the evil of federal usurpation by the States collectively, following the same line of reasoning as that of Madison.—Works (Federal Edition), vii., 401.

[1 ]Ante p. 370.

[2 ]In a letter of the same date enclosing the letter, Madison said:

“I have omitted a vindication of the true punctuation of the clause, because I now take for certain that the original Document signed by the members of the Convention, is in the Department of State, and that it testifies for itself against the erroneous editions of the text in that particular. Should it appear that the Document is not there, or that the error had slipped into it, the materials in my hands to which you refer, will amount I think to a proof outweighing even that authority. It would seem a little strange, if the original Constitution be in the Department of State, that it has hitherto escaped notice. But it is to be explained I presume by the fact that it was not among the papers relating to the Constn. left with Genl. Washington, and there deposited by him; but, having been sent from the Convention to the old Congress, lay among the mass of papers handed over on the expiration of the latter to that Dept. On your arrival at Washington, you will be able personally, or by a friend having more leisure, to satisfy yourself on these points. It appears as you foretold that my letter in the Northn. Review has encountered newspaper criticism; but as yet little if at all I believe on the ground looked for. In some instances, both the letter & the report of 1799 are misunderstood, and in none that I have seen has the distinction been properly kept in view between the authority of a higher Tribunal to decide on the extent of its own jurisdiction, compared with that of other Tribunals, and its claim of jurisdiction in any particular case or description of cases as within that extent; it being presumed that if not within the extent of its jurisdiction it will be pronounced coram non judice; and it being understood that if not so, it will be a case of usurpation & to be treated as such.”—Mad. MSS.

(For the punctuation of the Constitution see ante, Vol. IV., p. 489).

He wrote a memorandum to accompany his letter to Stevenson:

“Memorandum not used in letter to Mr. Stevenson.

“These observations will be concluded with a notice of the argt. in favor of the grant of a full power to provide for Common D. & Genl. w. drawn from the punctuation in some Editions of the Constn.

“According to one mode of presenting the text: it reads as follows: Congress shall have power To lay & collect taxes duties- imposts & excises, to pay the debts & provide for the C.D. & G.W. of the U.S. but all duties imposts & excises shall be uniform, to another mode the same with commas—vice semicolons.

“According to the other mode the text stands thus. Congress shall have power,

To lay & col. tax, ds imp. & excises;
To pay the debts & provide for the Com. d. & G.W.
of the U. S.; but all ds imp. & excs. shall be
uniform throug the U. S.

and from this view of the text, it is inferred that the latter sentence conveys a distinct substantive power to provide for the C.D. & G.W.

“Without enquiring how far the text in this form wd convey the power in question; or admitting that any mode of pointing or distributing the terms could invalidate the evidence wch has been exhibited, that it was not the intention of the Genl. or of the St. Convns. to express by the use of the terms C.D. & G.W. a substantive & indefinite power; or to imply that the Gen. terms were not to be explained and limited by the specified powers, succeeding them; in like manner as they were explained & limited in the former Articles of Confedn. from which the terms were taken, it happens that the authenticity of the punctuation which preserves the Unity of the clause can be as satisfactorily shewn, as the true intention of the parties to the Constn. has been shewn in the language used by them.

“The only instance of a division of the Clause afforded by the Journal of the Convention is in the Draft of a Constn reported by a Come. of five members, & entered on the 12. of Sepr.

“But that this must have been an erratum of the pen or of the press, may be inferred from the circumstance that in a copy of that Report printed at the time for the use of the members & now in my possession the text is so pointed as to unite the parts in one substantive clause—an inference favored also by a previous Report of Sept. 4 by a Come. of eleven in which the parts of the clause are united not separated.

“And that the true reading of the Constn. as it passed, is that which unites the parts, is abundantly attested by the following facts.

“1. Such is the form of text in the Constn printed at the close of the Convention, after being signed by the members, of which a copy is also now in my possession.

“2. The case is the same in the Constn reported from the Convention to the old Congress as printed on their Journal of Sepr 28, 1787, and transmitted by that Body to the Legislatures of the several States.

“3. The case is the same in the copies of the transmitted Constn as printed by the ratifying States, several of which have been examined and it is a presumption that there is no variation in the others. The text is in the same form in an Edn of the Const. published in 1814 by order of the Senate, as also in the Constn as prefixed to the Edn. of the Laws of the U. S.

“Should it be not contested that the origl. Const in its engrossed or enrolled state with the names of the subscribing members suffixed thereto, presents the text in the same form, that alone must extinguish the argt in question.

“If contrary to every ground of confidence the text in its original enrolled Document, should not coincide with these multiplied examples, the first question wd be of comparative probability of error even in the enrolled doct. and in the no & variety of the concerning examples in opposition to it.

“And a 2d. question, whether the construction put on the text in any of its forms or punctuations ought to have the weight of a feather agst the solid & diversified proofs which have been pointed out of the meaning of the parties to the Constn.

“It might be added, that in the Journal of Septr. 14 the clause to which the proviso was added now a part of the Constn viz—‘but all duties, imposts & excises shall be uniform throughout the U.S.,’ is called the ‘first’ of course a ‘single’ clause, and it is obvious that the uniformity required by the proviso implies that what is referred to was a part of the same clause with the proviso not an antecedent clause altogether separated from it.”—Mad. Mss.

[1 ]See ante, Vol. IV., p. 253 et seq.

[1 ]Wilson’s pamphlet may be found in his Works (Philadelphia, 1804), iii., 397.

[1 ]A final paragraph for the letter of Novr 27, 1830 to Mr. Stevenson.

“Allow me dear Sir to express on this occasion, what I always feel, an anxious hope that as our Constitution rests on a middle ground between a form, wholly national, and one merely federal, and on a division of the powers of Govt between the States in their united character and in their individual characters, this peculiarity of the system will be kept in view as a key to the sound interpretation of the Instrument and a warning agst. any doctrine that would either enable the States to invalidate the powers of the U. States, or confer all power on them.”—Madison’s Note.

The following is not in the Madison MSS., but is from the Works of Madison (Cong Ed.):

Supplement to the letter of November 27, 1830, to A. Stevenson, on the phrase “common defence and general welfare.”—On the power of indefinite appropriation of money by Congress.

It is not to be forgotten, that a distinction has been introduced between a power merely to appropriate money to the common defence & general welfare, and a power to employ all the means of giving full effect to objects embraced by the terms.

1. The first observation to be here made is, that an express power to appropriate money authorized to be raised, to objects authorized to be provided for, could not, as seems to have been supposed, be at all necessary; and that the insertion of the power “to pay the debts,” &c., is not to be referred to that cause. Ithas been seen, that the particular expression of the power originated in a cautious regard to debts of the United States antecedent to the radical change in the Federal Government; and that, but for that consideration, no particular expression of an appropriating power would probably have been thought of. An express power to raise money, and an express power (for example) to raise an army, would surely imply a power to use the money for that purpose. And if a doubt could possibly arise as to the implication, it would be completely removed by the express power to pass all laws necessary and proper in such cases.

2. But admitting the distinction as alleged, the appropriating power to all objects of “common defence and general welfare” is itself of sufficient magnitude to render the preceding views of the subject applicable to it. Is it credible that such a power would have been unnoticed and unopposed in the Federal Convention? in the State Conventions, which contended for, and proposed restrictive and explanatory amendments? and in the Congress of 1789, which recommended so many of these amendments? A power to impose unlimited taxes for unlimited purposes could never have escaped the sagacity and jealousy which were awakened to the many inferior and minute powers which were criticised and combated in those public bodies.

3. A power to appropriate money, without a power to apply it in execution of the object of appropriation, could have no effect but to lock it up from public use altogether; and if the appropriating power carries with it the power of application and execution, the distinction vanishes. The power, therefore, means nothing, or what is worse than nothing, or it is the same thing with the sweeping power “to provide for the common defence and general welfare.”

4. To avoid this dilemma, the consent of the States is introduced as justifying the exercise of the power in the full extent within their respective limits. But it would be a new doctrine, that an extra-constitutional consent of the parties to a Constitution could amplify the jurisdiction of the constituted Government. And if this could not be done by the concurring consents of all the States, what is to be said of the doctrine that the consent of an individual State could authorize the application of money belonging to all the States to its individual purposes? Whatever be the presumption that the Government of the whole would not abuse such an authority by a partiality in expending the public treasure, it is not the less necessary to prove the existence of the power. The Constitution is a limited one, possessing no power not actually given, and carrying on the face of it a distrust of power beyond the distrust indicated by the ordinary forms of free Government.

The peculiar structure of the Government, which combines an equal representation of unequal numbers in one branch of the Legislature, with an equal representation of equal numbers in the other, and the peculiarity which invests the Government with selected powers only, not intrusting it even with every power withdrawn from the local governments, prove not only an apprehension of abuse from ambition or corruption in those administering the Government, but of oppression or injustice from the separate interests or views of the constituent bodies themselves, taking effect through the administration of the Government. These peculiarities were thought to be safeguards due to minorities having peculiar interests or institutions at stake, against majorities who might be tempted by interest or other motives to invade them, and all such minorities, however composed, act with consistency in opposing a latitude of construction, particularly that which has been applied to the terms “common defence and general welfare,” which would impair the security intended for minor parties. Whether the distrustful precaution interwoven in the Constitution was or was not in every instance necessary; or how far, with certain modifications, any farther powers might be safely and usefully granted, are questions which were open for those who framed the great Federal Charter, and are still open to those who aim at improving it. But while it remains as it is, its true import ought to be faithfully observed; and those who have most to fear from constructive innovations ought to be most vigilant in making head against them.

But it would seem that a resort to the consent of the State Legislatures, as a sanction to the appropriating power, is so far from being admissible in this case, that it is precluded by the fact that the Constitution has expressly provided for the cases where that consent was to sanction and extend the power of the national Legislature. How can it be imagined that the Constitution, when pointing out the cases where such an effect was to be produced, should have deemed it necessary to be positive and precise with respect to such minute spots as forts, &c., and have left the general effect ascribed to such consent to an argumentative, or, rather, to an arbitrary construction? And here again an appeal may be made to the incredibility that such a mode of enlarging the sphere of federal legislation should have been unnoticed in the ordeals through which the Constitution passed, by those who were alarmed at many of its powers bearing no comparison with that source of power in point of importance.

5. Put the case that money is appropriated to a canal2 to be cut within a particular State; how and by whom, it may be asked, is the money to be applied and the work to be executed? By agents under the authority of the General Government? then the power is no longer a mere appropriating power. By agents under the authority of the States? then the State becomes either a branch or a functionary of the Executive authority of the United States, an incongruity that speaks for itself.

6. The distinction between a pecuniary power only, and a plenary power “to provide for the common defence and general welfare,” is frustrated by another reply to which it is liable. For if the clause be not a mere introduction to the enumerated powers, and restricted to them, the power to provide for the common defence and general welfare stands as a distinct substantive power, the first on the list of legislative powers, and not only involving all the powers incident to its execution, but coming within the purview of the clause concluding the list, which expressly declares that Congress may make all laws necessary and proper to carry into execution the foregoing powers vested in Congress.

The result of this investigation is, that the terms “common defence and general welfare” owed their induction into the text of the Constitution to their connexion in the “Articles of Confederation,” from which they were copied, with the debts contracted by the old Congress, and to be provided for by the new Congress; and are used in the one instrument as in the other, as general terms, limited and explained by the particular clauses subjoined to the clause containing them; that in this light they were viewed throughout the recorded proceedings of the Convention which framed the Constitution; that the same was the light in which they were viewed by the State Conventions which ratified the Constitution, as is shown by the records of their proceedings; and that such was the case also in the first Congress under the Constitution, according to the evidence of their journals, when digesting the amendments afterward made to the Constitution. It equally appears that the alleged power to appropriate money to the “common defence and general welfare” is either a dead letter, or swells into an unlimited power to provide for unlimited purposes, by all the means necessary and proper for those purposes. And it results finally, that if the Constitution does not give to Congress the unqualified power to provide for the common defence and general welfare, the defect cannot be supplied by the consent of the States, unless given in the form prescribed by the Constitution itself for its own amendment.

As the people of the United States enjoy the great merit of having established a system of Government on the basis of human rights, and of giving to it a form without example, which, as they believe, unites the greatest national strength with the best security for public order and individual liberty, they owe to themselves, to their posterity, and to the world, a preservation of the system in its purity, its symmetry, and its authenticity. This can only be done by a steady attention and sacred regard to the chartered boundaries between the portion of power vested in the Government over the whole, and the portion undivested from the several Governments over the parts composing the whole; and by a like attention and regard to the boundaries between the several departments, Legislative, Executive, and Judiciary, into which the aggregate power is divided. Without a steady eye to the landmarks between these departments, the danger is always to be apprehended, either of mutual encroachments, and alternate ascendencies incompatible with the tranquil enjoyment of private rights, or of a concentration of all the departments of power into a single one, universally acknowledged to be fatal to public liberty.

And without an equal watchfulness over the great landmarks between the General Government and the particular Governments, the danger is certainly not less, of either a gradual relaxation of the band which holds the latter together, leading to an entire separation, or of a gradual assumption of their powers by the former, leading to a consolidation of all the Governments into a single one.

The two vital characteristics of the political system of the United States are, first, that the Government holds its powers by a charter granted to it by the people; second, that the powers of Government are formed into two grand divisions—one vested in a Government over the whole community, the other in a number of independent Governments over its components parts. Hitherto charters have been written grants of privileges by Governments to the people. Here they are written grants of power by the people to their Governments

Hitherto, again, all the powers of Government have been, in effect, consolidated into one Government, tending to faction and a foreign yoke among a people within narrow limits, and to arbitrary rule among a people spread over an extensive region. Here the established system aspires to such a division and organization of power as will provide at once for its harmonious exercise on the true principles of liberty over the parts and over the whole, notwithstanding the great extent of the whole; the system forming an innovation and an epoch in the science of Government no less honorable to the people to whom it owed its birth, than auspicious to the political welfare of all others who may imitate or adopt it.

As the most arduous and delicate task in this great work lay in the untried demarkation of the line which divides the general and the particular Governments by an enumeration and definition of the powers of the former, more especially the legislative powers; and as the success of this new scheme of polity essentially depends on the faithful observance of this partition of powers, the friends of the scheme, or rather the friends of liberty and of man, cannot be too often earnestly exhorted to be watchful in marking and controlling encroachments by either of the Governments on the domain of the other.

[1 ]Tefft wrote from Savannah, introduced by William B. Sprague of the same place.

[1 ]In the draft of the letter was the following sentence against which Madison wrote, “extract”:

“[In the year 1828 I recd. from J. V. Bevan sundry numbers of the ‘Savannah Georgian,’ containing continuations of the notes of Majr. Pierce in the Federal Convention of 1827. They were probably sent on account of a marginal suggestion of inconsistency between language held by me in the Convention with regard to an Executive Veto, and a use made of the power by myself, when in the Executive administration. The inconsistency is done away by the distinction, not averted to, between an absolute veto, to which the language was applied, and the qualified veto which was exercised.]”

Again on September 10, 1830, he wrote to Everett:

On September 23, 1830, he wrote to Nicholas P. Trist:

See Warfield’s Kentucky Resolutions of 1798; also, for Jefferson’s correspondence, his Writings (P. L. Ford, Federal Edition) viii., 57, et seq.

[* ]Whether these words were in the draft from my pen or added before the Resolutions were introduced by the member who withdrew them I am not authorized to say, no Copy of the draft having been retained & memory not to be trusted after such a lapse of time. I certainly never disapproved the erasure of them.—Madison’s Note.

[2 ]On more occasions than one, it has been noticed in Congressional debates that propositions appear to have been made in the Convention of 1787 to give to Congress the power of opening canals, and to have been rejected; and that Mr. Hamilton, when contending in his report in favour of a bank for a liberal construction of the powers of Congress, admitted that a canal might be beyond the reach of those powers.—Madison’s Note.

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1830 - TO GEORGE McDUFFIE. 1 - James Madison, The Writings, vol. 9 (1819-1836) [1910]

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TO GEORGE McDUFFIE.1

Dear Sir

TO JAMES HILLHOUSE.mad. mss.

Dear Sir—

TO M. L. HURLBERT.mad. mss.

TO MARTIN VAN BUREN.mad. mss.

TO MARTIN VAN BURENmad. mss.

Dear Sir,—

TO EDWARD EVERETT.1mad. mss.

Dr. Sir—

TO MARGARET B. SMITH.1

TO THOMAS W. GILMER.mad. mss.

Dr Sir—

TO JARED SPARKS.mad. mss.

Dear Sir—

TO HENRY CLAY.mad. mss.

Dear Sir—

TO ANDREW STEVENSON.mad. mss.

Dr Sir

TO JAMES K. TEFFT.mad. mss.

D^r. Sir—

D^r Sir—

D^r Sir