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1833 - TO ALEXANDER RIVES. 1 - James Madison, The Writings, vol. 9 (1819-1836) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.
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TO ALEXANDER RIVES.1
Montpelier, [January, 1833.]
I have received the letter signed “A Friend of Union and State Rights,” enclosing two Essays under the same signature.
It is not usual to answer communications without the proper names to them. But the ability and the motives disclosed in the essay induce me to say, in compliance with the wish expressed, that I do not consider the proceedings of Virginia in ’98-99 as countenancing the doctrine that a State may at will secede from its constitutional compact with the other states. A rightful secession requires the consent of the others, or an abuse of the compact absolving the seceding party from the obligation imposed by it.
In order to understand the reasoning on one side of the question, it is necessary to keep in view the precise state of the question and the positions and arguments on the other side. This is particularly necessary in questions arising under our novel and compound system of government. Much error and confusion have grown out of a neglect of this precaution.
The case of the alien and sedition acts was a question between the Government and the constituent body, Virginia making an appeal to the latter against the assumption of power by the former.
The case of a claim in a State to secede from its union with the others is a question among the states themselves as parties to a compact.
In the former case it was asserted against Virginia, that the states had no right to interpose legislative declarations of opinion on a constitutional point; nor a right to interpose at all against a decision of the Supreme Court of the United States, which was to be regarded as a tribunal from which there could be no appeal.
The object of Virginia was to vindicate legislative declarations of opinion; to designate the several constitutional modes of interposition by the states against abuses of power, and to establish the ultimate authority of the states as parties to and creatures of the Constitution to interpose against the decisions of the judicial as well as the other branches of the Government—the authority of the judicial being in no sense ultimate, out of the purview and form of the Constitution.
Much use has been made of the term “respective” in the third resolution of Virginia, which asserts the right of the States, in cases of sufficient magnitude to interpose “for maintaining within their respective limits the authorities, and so forth, appertaining to them;” the term “respective” being construed to mean a constitutional right in each State, separately, to decide on and resist by force encroachments within its limits. A foresight or apprehension of the misconstruction might easily have guarded against it. But, to say nothing of the distinction between ordinary and extreme cases, it is observable that in this, as in other instances throughout the resolution, the plural number (States) is used in referring to them that a concurrence and co-operation of all might well be contemplated in interpositions for effecting the objects within reach; and that the language of the closing resolution corresponds with this view of the third. The course of reasoning in the report on the resolutions requires the distinction between a State and the States.
It surely does not follow from the fact of the states, or rather the people embodied in them, having, as parties to the constitutional compact, no tribunal above them, that, in controverted meanings of the compact, a minority of the parties can rightfully decide against the majority, still less that a single party can decide against the rest, and as little that it can at will withdraw itself altogether from its compact with the rest.
The characteristic distinction between free Governments, and Governments not free is that the former are founded on compact, not between the Government and those for whom it acts, but among the parties creating the Government. Each of these being equal, neither can have more right to say that the compact has been violated and dissolved than every other has to deny the fact and to insist on the execution of the bargain. An inference from the doctrine that a single state has a right to secede at will from the rest is that the rest would have an equal right to secede from it; in other words, to turn it, against its will, out of its union with them. Such a doctrine would not, till of late, have been palatable anywhere, and nowhere less so than where it is now most contended for.
A careless view of the subject might find an analogy between state secession and individual expatriation. But the distinction is obvious and essential, even in the latter case, whether regarded as a right impliedly reserved in the original social compact, or as a reasonable indulgence, it is not exempt from certain conditions. It must be used without injustice or injury to the community from which the expatriating party separates himself. Assuredly he could not withdraw his portion of territory from the common domain. In the case of a State seceding from the union, its domain would be dismembered, and other consequences brought on not less obvious than pernicious.
I ought not to omit my regret that in the remarks on Mr. Jefferson and myself the names had not been transposed.
Having many reasons for marking this letter confidential, I must request that its publicity may not be permitted in any mode or through any channel. Among the reasons is the risk of misapprehensions or misconstructions, so common, without more attention and development that I could conveniently bestow on what is said.
Wishing to be assured that the letter has not miscarried, a single line acknowledging its receipt will be acceptable.
TO THOMAS R. DEW.mad mss.
Montpellier, Feby 23, 1833
I am aware of the impracticability of an immediate or early execution of any plan, that combines deportation, with emancipation; and of the inadmissibility of emancipation without deportation. But I have yielded to the expediency of attempting a gradual remedy by providing for the double operation.
If emancipation was the sole object, the extinguishment of slavery, would be easy, cheap & compleat. The purchase by the public of all female children at their birth, leaving them in bondage, till it wd defray the charge of rearing them, would within a limited period be a radical resort.
With the condition of deportation, it has appeared to me, that the great difficulty does not lie either in the expence of emancipation, or in the expence or the means of deportation, but in the attainment 1 of the requisite Asylums, 2, the consent of the individuals to be removed, 3, the labor for the vacuum to be created.
With regard to the expence. 1, much will be saved by voluntary emancipations, increasing under the influence of example, and the prospect of bettering the lot of the slaves. 2, much may be expected in gifts & legacies from the opulent the philanthropic and the conscientious, 3, more still from Legislative grants by the States, of which encouraging examples & indications have already appeared, 4, Nor is there any room for despair of aid from the indirect or direct proceeds of the public lands held in trust by Congress. With a sufficiency of pecuniary means, the facility of providing a naval transportation of the exiles is shewn by the present amount of our tonnage and the promptitude with which it can be enlarged; by the number of emigrants brought from Europe to N. America within the last year; and by the greater number of slaves, which have been within single years brought from the Coast of Africa across the Atlantic.
In the attainment of adequate Asylums, the difficulty, though it may be considerable, is far from being discouraging. Africa is justly the favorite choice of the patrons of colonization; and the prospect there is flattering, 1, in the territory already acquired, 2 in the extent of Coast yet to be explored and which may be equally convenient, 3, the adjacent interior into which the littoral settlements can be expanded under the auspices of physical affinities between the new comers and the natives, and of the moral superiorities of the former, 4, the great inland Regions now ascertained to be accessible by navigable waters, & opening new fields for colonizing enterprises.
But Africa, tho’ the primary, is not the sole asylum within contemplation. An auxiliary one presents itself in the islands adjoining this Continent where the colored population is already dominant, and where the wheel of revolution may from time to time produce the like result.
Nor ought another contingent receptacle for emancipated slaves to be altogether overlooked. It exists within the territory under the controul of the U. S. and is not too distant to be out of reach, whilst sufficiently distant to avoid for an indefinite period, the collisions to be apprehended from the vicinity of people distinguished from each other by physical as well as other characteristics.
The consent of the individuals is another pre-requisite in the plan of removal. At present there is a known repugnance in those already in a state of freedom to leave their native homes; and among the slaves there is an almost universal preference of their present condition to freedom in a distant & unknown land. But in both classes particularly that of the slaves the prejudices arise from a distrust of the favorable accounts coming to them through white channels. By degrees truth will find its way to them from sources in which they will confide, and their aversion to removal may be overcome as fast as the means of effectuating it shall accrue.
The difficulty of replacing the labour withdrawn by a removal of the slaves, seems to be urged as of itself an insuperable objection to the attempt. The answer to it is, 1, that notwithstanding the emigrations of the whites, there will be an annual and by degrees an increasing surplus of the remaining mass. 2, That there will be an attraction of whites from without, increasing with the demand, and, as the population elsewhere will be yielding a surplus to be attracted, 3 that as the culture of Tobacco declines with the contraction of the space within which it is profitable, & still more from the successful competition in the west, and as the farming system takes place of the planting, a portion of labour can be spared, without impairing the requisite stock, 4 that altho’ the process must be slow, be attended with much inconvenience, and be not even certain in its result, is it not preferable to a torpid acquiescence in a perpetuation of slavery, or an extinguishment of it by convulsions more disastrous in their character & consequences than slavery itself.
In my estimate of the experiment instituted by the Colonization Society I may indulge too much my wishes & hopes, to be safe from error. But a partial success will have its value, and an entire failure will leave behind a consciousness of the laudable intentions with which relief from the greatest of our calamities was attempted in the only mode presenting a chance of effecting it.
I hope I shall be pardoned for remarking that in accounting for the depressed condition of Virginia, you seem to allow too little to the existence of slavery; ascribe too much to the tariff laws, and not to have sufficiently taken into view the effect of the rapid settlement of the W. & S. W. Country.
Previous to the Revolution, when, of these causes, slavery alone was in operation, the face of Virga. was in every feature of improvement & prosperity, a contrast to the Colonies where slavery did not exist, or in a degree only, not worthy of notice. Again, during the period of the tariff laws prior to the latter state of them, the pressure was little if at all, regarded as a source of the general suffering. And whatever may be the degree in which the extravagant augmentation of the tariff may have contributed to the depression the extent of this cannot be explained by the extent of the cause. The great & adequate cause of the evil is the cause last mentioned; if that be indeed an evil which improves the condition of our migrating citizens & adds more to the growth & prosperity of the whole than it subtracts from a part of the community.
Nothing is more certain than that the actual and prospective depression of Virginia, is to be referred to the fall in the value of her landed property, and in that of the staple products of the land. And it is not less certain that the fall in both cases, is the inevitable effect of the redundancy in the market both of land and of its products. The vast amount of fertile land offered at 125 Cents per acre in the W. & S. W. could not fail to have the effect already experienced of reducing the land here to half its value; and when the labour that will here produce one Hhd. of Tobo. and ten barrels of flour, will there produce two Hhds and twenty barrels, now so cheaply transportable to the destined outlets, a like effect on these articles must necessarily ensue. Already more Tobo. is sent to N. Orleans, than is exported from Virginia to foreign markets; Whilst the Article of flour exceeding for the most part the demand for it, is in a course of rapid increase from new sources as boundless as they are productive. The great staples of Virga. have but a limited market which is easily glutted. They have in fact sunk more in price, and have a more threatening prospect, than the more Southern staples of Cotton & Rice. The case is believed to be the same with her landed property. That it is so with her slaves is proved by the purchases made here for the market there. . . .
TO JOHN TYLER.1mad. mss.
In your speech of Februray 6th, 1833, you say: “He (Edmund Randolph) proposed (in the Federal Convention of 1787) a Supreme National Government, with a Supreme Executive, a Supreme Legislature, and a Supreme Judiciary, and a power in Congress to veto State laws. Mr. Madison I believe, Sir, was also an advocate of this plan of govt. If I run into error on this point, I can easily be put right. The design of this plan, it is obvious, was to render the States nothing more than the provinces of a great Government, to rear upon the ruins of the old Confederacy a Consolidated Government, one and indivisible.”
I readily do you the justice to believe that it was far from your intention to do injustice to the Virginia Deputies to the Convention of 1787. But it is not the less certain that it has been done to all of them, and particularly to Mr. Edmund Randolph.
The resolutions proposed by him, were the result of a Consultation among the Deputies, the whole number, seven, being present. The part which Virga. had borne in bringg abt. the Convention, suggested the Idea that some such initiative step might be expected from their Deputation; and Mr. Randolph was designated for the task. It was perfectly understood that the Propositions committed no one to their precise tenor or form; and that the members of the Deputation wd be as free in discussing and shaping them as the other members of the Convention. Mr. R. was made the organ on the occasion, being then the Governor of the State, of distinguished talents, and in the habit of public Speaking. Genl Washington, tho’ at the head of the list was, for obvious reasons disinclined to take the lead. It was also foreseen that he would be immediately called to the presiding station.
Now what was the plan sketched in the Propositions?
They proposed that “the Articles of Confederation shd. be so corrected and enlarged as to accomplish the objects of their Institution, namely common defence, security of liberty, and general welfare;” (the words of the Confederation.)
That a National Legislature, a National Executive and a National Judiciary should be established. (this organization of Departments the same as in the adopted Constitution.)
“That the right of suffrage in the Legislature shd be (not equal among the States as in the Confederation, but) proportioned to quotas of contribution or numbers of free inhabitants as might seem best in different cases. (the same corresponding in principle with the mixed rule adopted.)
“That it should consist of two branches; the first elected by the people of the several States, the second by the first, of a number nominated by the State Legislatures.” (a mode of forming a Senate regarded as more just to the large States, than the equality which was yielded to the Small States by the compromise with them, but not material in any other view. In reference to the practicable equilibrium between the General & the State authorities, the comparative influence of the two modes will depend on the question whether the small States will incline most to the former or to the latter scale).
“That a National Executive, with a Council of Revision consisting of a number of the Judiciary, (wc. Mr. Jefferson would have approved) and a qualified negative on the laws, be instituted, to be chosen by the Legislature for the term of—years, to be ineligible a second time, and with a compensation to be neither increased nor diminished so as to affect the existing magistracy. (there is nothing in this Ex. modification materially different in its Constitutional bearing from that finally adopted in the Constitution of the U. S.)
That a National Judiciary be established, consisting of a Supreme appellate and inferior Tribunals, to hold their offices during good behavior, and with compensations not to be increased or diminished, so as to affect persons in office. (there can be nothing here subjecting it to unfavourable comparison with the article in the Constitution existing.)
“That provision ought to be made for the admission of new States lawfully arising within the limits of the U. S., wth the consent of a number of votes in the Natl Legislature less than the whole.” (This is not at variance wth. the existing provisions.)
“That a Republican Govt ought to be guarantied by the U. S. to each State. (this is among the existing provisions.)
“That provision ought to be made for amending the articles of Union, without requiring the Assent of the National Legislature. (this is done in the Constn)
“That the Legisl. Ex. & Judiciary powers of the several States ought to be bound by oath to support the articles of Union (this was provided with the emphatic addition of “anything in the Constn. or laws of the States notwithstanding.)
“That the act of the Convention, after the approbation of the (then) Cong to be submitted to an assembly or assemblies of Representatives recommended by the several Legislatures to be expressly chosen by the people to consider & decide thereon. (This was the course pursued)
So much for the structure of the Govt. as proposed by Mr. Randolph, & for a few miscellaneous provisions. When compared with the Constn. as it stands what is there of a consolidating aspect that can be offensive to those who applaud approve or are satisfied with the Const:
Let it next be seen what were the powers proposed to be lodged in the Govt as distributed among its several Departments.
The Legislature, each branch possessing a right to originate acts, was to enjoy, 1. the legislative rights vested in the Congs of the Confederation. (This must be free from objection, especially as the powers of that description were left to the selection of the Convention)
2. Cases to which the several States, would be incompetent or, in which the harmony of the U. S. might be intercepted by individual Legislation. (It cannot be supposed that these descriptive phrases were to be left in their indefinite extent to Legislative discretion. A selection & definition of the cases embraced by them was to be the task of the Convention. If there could be any doubt that this was intended & so understood by the Convention, it would be removed by the course of proceeding on them as recorded, in its Journal. Many of the propositions made in the Convention, fall within this remark; being, as is not unusual general in their phrase, but, if adopted to be reduced to their proper shape & specification.)
3. to negative all laws passed by the Several States contravening, in the opinion of the National Legislature, the Articles of Union, or any Treaty subsisting under their Authority. (The necessity of some constitutional and effective provision guarding the Constn. & laws of the Union agst violations of them by the laws of the States, was felt and taken for granted by all from the commencement, to the conclusion of the work performed by the Convention. Every vote, in the Journal involving the opinion, proves a unanimity among the Deputations on this point. A voluntary & unvaried concurrence of so many (then 13 with a prospect of continued increase) distinct & independent Authorities, in expounding & acting on a rule of Conduct, which must be the same for all, or in force in none, was a calculation forbidden by a knowledge of human nature, and especially so by the experience of the Confederacy, the defects of which were to be supplied by the Convention.
With this view of the subject, the only question was the mode of controul on the Individual Legislatures. This might be either preventive or corrective; the former by a negative on the State laws; the latter by a Legislative repeal by a judicial supersedeas, or by an administrative arrest of them. The preventive mode as the best if equally practicable with the corrective, was brought by Mr. R. to the consideration of the Convention. It was tho’ not a little favored, as appears by the votes in the Journal finally abandoned, as not reducible to practice. Had the negative been assigned to the Senatorial branch of the Govt. representing the State Legislatures, thus giving to the whole of these a controul over each, the expedient would probably have been still more favorably recd tho’ even in that form, subject to insuperable objections, in the distance of many of the State Legislatures, and the multiplicity of the laws of each.
Of the corrective modes, a repeal by the National Legislature was pregnant with inconveniences rendering it inadmissible.
The only remaining safeguard to the Constitution and laws of the Union agst the encroachment of its members, and anarchy among themselves is that which was adopted, in the Declaration that the Constitution laws & Treaties of the U. S. should be the supreme law of the Land, and as such, be obligatory on the authorities of the States as well as those of the U. S.
The last of the proposed Legislative Powers was “to call forth the force of the Union agst. any member failing to fulfil its duty under the articles of Union.”
The evident object of this provision was not to enlarge the powers of the proposed Govt. but to secure their efficiency. It was doubtless suggested by the inefficiency of the Confederate system, from the want of such a sanction; none such being expressed in its Articles; and if as Mr. Jefferson1 argued, necessarily implied, having never been actually employed. The proposition as offered by Mr. R. was in general terms. It might have been taken into Consideration, as a substitute for, or as a supplement to the ordinary mode of enforcing laws by Civil process; or it might have been referred to cases of territorial or other controversies between States and a refusal of the defeated party to abide by the decision; leaving the alternative of a Coercive interposition by the Govt of the Union, or a war between its members, and within its bowels. Neither of these readings nor any other, which the language wd. bear, could countenance a just charge on the deputation or on Mr. Randolph, of contemplating a Consolidated Govt. with unlimited powers.
The Executive powers do not cover more ground, than those inserted by the Convention to whose discretion the task of enumerating them was submitted. The proposed association with the Executive of a Council of Revision, could not give a consolidating feature to the plan.
The Judicial power in the Plan is more limited than the Jurisdiction described in the Const., with the exception of cases of “impeachment of any National officer,” and questions which involve the National peace & harmony.
The trial of Impeacht is known to be one of the most difficult of Constl arrangemts. The reference of it to the Judicial Dept. may be presumed to have been suggested by the example in the Constitution of Virga. The option seemed to lie between that & the other Depts. of the Govt. No example of an organization excluding all the Departs. presenting itself. Whether the Judil mode proposed, was preferable to that inserted in the Const: or not, the difference cannot affect the question of a Consolidating aspect or tendency.
By questions involving “the Natl peace and harmony,” no one can suppose more was meant than might be specified by the Convention as proper to be referred to the Judiciary, either by the Constn. or the Constl Authority of the Legislature. They could be no rule, in that latitude, to a court, nor even to a Legislature with limited powers.
That the Convention understood the entire Resolutions of Mr. R to be a mere sketch in which omitted details were to be supplied and the general terms and phrases to be reduced to their proper details, is demonstrated by the use made of them in the Convention. They were taken up & referred to a Come of the whole in that sense; discussed one by one; referred occasionally to special Coms to Comes. of detail on special points, at length to a Come to digest & report the draught of a Constn. and finally to a Come of arrangement and diction.
On this review of the whole subject, candour discovers no ground for the charge, that the Resolns. contemplated a Govt. materially different from or more national than that in which they terminated, and certainly no ground for the charge of consolidating views in those from whom the Resolns proceeded.
What then is the ground on which the charge rests? It cd not be on a plea that the plan of Mr. R. gave unlimited powers to the proposed Govert for the plan expressly aimed at a specification, & of course a limitation of the powers.
It cd not be on the supremacy of the general Authority over the separate authorities, for that supremacy as already noticed, is more fully & emphatically established by the text of the Constitution.
It c not be on the proposed ratification by the people instead of the States for such is the ratification on wch. the Constn is founded.
The charge must rest on the term National prefixed to the organized Depts in the propositions of Mr. R. yet how easy it is to acct. for the use of the term witht. taking it in a consolidating sense.
In the 1st. place. It contradistinguished the proposed Govt from the Confederacy wch it was to supersede.
2. As the System was to be a new & compound one, a nondescript without a technical appellation for it, the term “national” was very naturally suggested by its national features: 1. in being estab. not by the authority of State Legs but by the original authd. of the people. 2. in its organization into Legisl. Ex. & Judl Depart. and 3. in its action on the people of the States immediately, and not on the Govts of the States, as in a Confederacy.
But what alone would justify & acct for the application of the term National to the proposed Govt. is that it wd possess, exclusively all the attributes of a Natl Govt in its relations with other Nations, including the most essential one, of regulating foreign Commerce, with the effective means of fulfilling the oblig. & responsiby of the U. S. to other Nations. Hence it was that the term Natl was at once so readily applied to the new Govt and that it has become so universal & familiar. It may safely be affirmed that the same w have been the case, whatever name might have been given to it by the props. of Mr. R. or by the Convention. A Govt. which alone is known & acknowledged by all foreign nations, and alone charged with the international relations, could not fail to be deemed & called at home, a Natl Govt.
After all, in discussing & expounding the character & import of a Constn. let candor decide whether it be not more reasonable & just to interpret the name or title by facts on the face of it, than to torture the facts by a bed of Procrustes into a fitness to the title.
I must leave it to yourself to judge whether this exposition of the Resolns. in question be not sufficiently reasonable to protect them from the imputation of a consolidating tendency, and still more, the Virga Deputies from having that for their object.
With regard to Mr. R. particularly, is not some respect due to his public letter to the Speaker of ye. H. of D. in which he gives for his refusal to sign the Constitn. reasons irreconcilable with the supposition that he cd. have proposed the Resolns. in a meaning charged on them? Of Col Mason who also refused, it may be inferred from his avowed reasons, that he cd. not have acquiesced in the propositions if understood or intended to effect a Conso Gov.
So much use has been made of Judge Yates’s minutes of the debates in the Convention, that I must be allowed to remark that they abound in inaccuracies, and are not free from gross errors some of which do much injustice to the arguments & opinions of particular members. All this may be explained without a charge of wilful misrepresentation, by the very desultory manner in which his notes appear to have been taken his ear catching particular expressions & losing qualifications of them; and by prejudices giving to his mind, all the bias which an honest one could feel. He & his colleague were the Representatives of the dominant party in N. York, which was opposed to the Convention & the object of it, which was averse to any essential change in the Articles of Confederation, which had inflexibly refused to grant even a duty of 5 per ct on imports for the urgent debts of the Revolution; which was availing itself of the peculiar situation of New York, for taxing the consumption of her neighbours, and which foresaw that a primary aim of the Convention wd. be to transfer from the States to the common authority, the entire regulation of foreign commerce. Such were the feelings of the two Deputies, that on finding the Convention bent on a radical reform of the Federal system, they left it in the midst of its discussions and before the opinions & views of many of the members were drawn out to their final shape & practical application.
Without impeaching the integrity of Luther Martin, it may be observed of him also, that his report of the proceedings of the Convention during his stay in it, shews, by its colourings that his feelings were but too much mingled with his statements and inferences. There is good ground for believing that Mr. M. himself became sensible of this and made no secret of his regret, that in his address to the Legislature of his State, he had been betrayed by the irritated state of his mind, into a picture that might do injustice both to the Body and to particular members.
TO WILLIAM CABELL RIVES.mad. mss.
Montpr, March 12, 1833.
I have recd your very kind letter of the 6th, from Washington, and by the same mail a copy of your late Speech in the Senate for which I tender my thanks. I have found as I expected, that it takes a very able and enlightening view of its subject. I wish it may have the effect of reclaiming to the doctrine & language held by all from the birth of the Constitution, & till very lately by themselves, those who now Contend that the States have never parted with an Atom of their sovereignty; and consequently that the Constitutional band which holds them together, is a mere league or partnership, without any of the characteristics of sovereignty or nationality.
It seems strange that it should be necessary to disprove this novel and nullifying doctrine; and stranger still that those who deny it should be denounced as Innovators, heretics & Apostates. Our political system is admitted to be a new Creation—a real nondescript. Its character therefore must be sought within itself; not in precedents, because there are none; not in writers whose comments are guided by precedents. Who can tell at present how Vattel and others of that class, would have qualified (in the Gallic sense of the term) a Compound & peculiar system with such an example of it as ours before them.
What can be more preposterous than to say that the States as united, are in no respect or degree, a Nation, which implies sovereignty; altho’ acknowledged to be such by all other Nations & Sovereigns, and maintaining with them, all the international relations, of war & peace, treaties, commerce, &c, and, on the other hand and at the same time, to say that the States separately are compleatly nations & sovereigns; although they can separately neither speak nor harken to any other nation, nor maintain with it any of the international relations whatever and would be disowned as Nations if presenting themselves in that character.
The nullifiers it appears, endeavor to shelter themselves under a distinction between a delegation and a surrender of powers. But if the powers be attributes of sovereignty & nationality & the grant of them be perpetual, as is necessarily implied, where not otherwise expressed, sovereignty & nationality according to the extent of the grant are effectually transferred by it, and a dispute about the name, is but a battle of words. The practical result is not indeed left to argument or inference. The words of the Constitution are explicit that the Constitution & laws of the U. S. shall be supreme over the Constitution & laws of the several States; supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects it would be like a scabbard in the hand of a soldier without a sword in it. The imagination itself is startled at the idea of twenty four independent expounders of a rule that cannot exist, but in a meaning and operation, the same for all.
The conduct of S. Carolina has called forth not only the question of nullification; but the more formidable one of secession. It is asked whether a State by resuming the sovereign form in which it entered the Union, may not of right withdraw from it at will. As this is a simple question whether a State, more than an individual, has a right to violate its engagements, it would seem that it might be safely left to answer itself. But the countenance given to the claim shows that it cannot be so lightly dismissed. The natural feelings which laudably attach the people composing a State, to its authority and importance, are at present too much excited by the unnatural feelings, with which they have been inspired agst their brethren of other States, not to expose them, to the danger of being misled into erroneous views of the nature of the Union and the interest they have in it. One thing at least seems to be too clear to be questioned; that whilst a State remains within the Union it cannot withdraw its citizens from the operation of the Constitution & laws of the Union. In the event of an actual secession without the Consent of the Co-States, the course to be pursued by these involves questions painful in the discussion of them. God grant that the meancing appearances, which obtruded it may not be followed by positive occurrences requiring the more painful task of deciding them!
In explaining the proceedings of Virga in 98-99, the state of things at that time was the more properly appealed to, as it has been too much overlooked. The doctrines combated are always a key to the arguments employed. It is but too common to read the expressions of a remote period thro’ the modern meaning of them, & to omit guards agst misconstruction not anticipated. A few words with a prophetic gift, might have prevented much error in the glosses on those proceedings. The remark is equally applicable to the Constitution itself.
Having thrown these thoughts on paper in the midst of interruptions added to other dangers of inaccuracy, I will ask the favor of you to return the letter after perusal. I have latterly taken this liberty with more than one of my corresponding friends. And every lapse of very short periods becomes now a fresh apology for it.
Neither Mrs. M. nor myself have forgotten the promised visit which included Mrs. Rives, and we flatter ourselves the fulfilment of it, will not be very distant. Meanwhile we tender to you both our joint & affecte. salutations.
P. Script. I inclose a little pamphlet rec a few days ago, which so well repaid my perusal, that I submit it to yours, to be returned only at your leisure. It is handsomely written, and its matter well chosen & interesting. A like task as well executed in every State wd. be of historical value; the more so as the examples might both prompt & guide researches, not as yet too late but rapidly becoming so.
TO HENRY CLAY.mad. mss.
Your letter of May 28, was duly received.1 In it you ask my opinion on the retention of the Land bill by the President.
It is obvious that the Constitution meant to allow the President an adequate time to consider the Bills &c presented to him, and to make his objections to them; and on the other hand that Congs. should have time to consider and overrule the objections. A disregard on either side of what it owes to the other, must be an abuse, for which it would be responsible under the forms of the Constitution. An abuse on the part of the President, with a view sufficiently manifest, in a case of sufficient magnitude to deprive Congs of the opportunity of overruling objections to their bills, might doubtless be a ground for impeachment. But nothing short of the signature of the President, or a lapse of ten days without a return of his objections, or an overruling of the objections by ⅔ of each House of Congs., can give legal validity to a Bill. In order to qualify (in the French sense of the term) the retention of the Land bill by the President, the first inquiry is, whether a sufficient time was allowed him to decide on its merits; the next whether with a sufficient time to prepare his objections, he unnecessarily put it out of the power of Congs to decide on them. How far an anticipated passage of the Bill ought to enter into the sufficiency of the time for Executive deliberation, is another point for consideration. A minor one may be whether a silent retention or an assignment to Congs. of the reasons for it, be the mode most suitable, to such occasions.
I hope with you that the compromizing tariff will have a course & effect avoiding a renewal of the contest between the S. and the North; and that a lapse of nine or ten years will enable the manufacturers to swim without the bladders which have supported them. Many considerations favor such a prospect. They will be saved in future much of the expence in fixtures, which they had to encounter, and in many instances unnecessarily incurred. They will be continually improving in the management of their business. They will not fail to improve occasionally on the machinery abroad. The reduction of duties on imported articles consumed by them will be equivalent to a direct bounty. There will probably be an increasing cheapness of food from the increasing redundancy of agricultural labour. There will within the experimental period be an addition of 4 or 5 millions to our population, no part or little of which will be needed for agricultural labour, and which will consequently be an extensive fund of manufacturing recruits. The current experience makes it probable, that not less than 50 or 60 thousand or more, of emigrants will annually reach the U. S. a large portion of whom will have been trained to manufactures and be ready for that employment.
With respect to Virga., it is quite probable from the progress already made in the Western Culture of Tobo., and the rapid exhaustion of her virgin soil in which alone it can be cultivated with a chance of profit, that of the 40 or 50 thousand labourers on Tobo, the greater part will be released from that employment, and be applicable to that of manufactures. It is well known that the farming system requires much fewer hands than Tobo. fields.
Should a war break out in Europe involving the manufacturing nations the rise of the wages there will be another brace to the manufacturing establishments here. It will do more; it will prove to the “absolutists” for free trade that there is in the contingency of war, one exception at least to their Theory.
It is painful to observe the unceasing efforts to alarm the South by imputations agst the North of unconstitutional designs on the subject of the slaves. You are right, I have no doubt in believing that no such intermeddling disposition exists in the Body of our Northern brethren. Their good faith is sufficiently guarantied by the interest they have, as merchants, as Ship owners, and as manufacturers, in preserving a Union with the slaveholding States. On the other hand, what madness in the South, to look for greater safety in disunion. It would be worse than jumping out of the Frying-pan into the fire: it wd. be jumping into the fire for fear of the Frying-pan. The danger from the alarm is that the pride & resentment exerted by them may be an overmatch for the dictates of prudence and favor the project of a Southern Convention insidiously revived, as promising by its Councils the best securities agst grievances of every sort from the North.
The case of the Tariff & Land bills cannot fail of an influence on the question of your return to the next session of Congs. They are both closely connected with the public repose.
TO BENJAMIN F. PAPOON.mad. mss.
Montpellier, May 18, 1833.
Your favor of the 13th ult: was duly recd and I thank you for the communication.
It cannot be doubted that the rapid growth of the individual States in population, wealth and power must tend to weaken the ties which bind them together. A like tendency results from the absence & oblivion of external danger, the most powerful controul on disuniting propensities, in the parts of a political community. To these changes in the condition of the States, impairing the cement of their Union, are now added the language & zeal which inculcate an incompatibility of interests between different Sections of the Country, and an oppression on the minor, by the major section, which must engender in the former a resentment amounting to serious hostility.
Happily these alienating tendencies are not without counter tendencies, in the complicated frame of our political system; in the geographical and commercial relations among the States, which form so many links & ligaments, thwarting a separation of them; in the gradual diminution of conflicting interests between the great Sections of Country, by a surplus of labour in the agricultural section, assimilating it to the manufacturing section; or by such a success of the latter, without obnoxious aids, as will substitute for the foreign supplies which have been the occasion of our discords, those internal interchanges which are beneficial to every section; and, finally, in the obvious consequences of disunion, by which the value of Union is to be calculated.
Still the increasing self-confidence felt by the Members of the Union, the decreasing influence of apprehensions from without, and the natural aspirations of talented ambition for new theatres multiplying the chances of elevation in the lottery of political life, may require the co-operation of whatever moral causes may aid in preserving the equilibrium contemplated by the Theory of our compound Government. Among these causes may justly be placed appeals to the love and pride of country; & few could be made in a form more touching, than a well-executed picture of the Magical effect of our National Emblem, in converting the furious passions of a tumultuous soldiery into an enthusiastic respect for the free & united people whom it represented.
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TO — —1mad. mss.
You justly take alarm at the new doctrine that a majority Govt. is of all other Govts. the most oppressive. The doctrine strikes at the root of Republicanism, and if pursued into its consequences, must terminate in absolute monarchy, with a standing military force; such alone being impartial between its subjects, and alone capable of overpowering majorities as well as minorities.
But it is said that a majority Govt. is dangerous only where there is a difference in the interest of the classes or sections composing the community; that this difference will generally be greatest in communities of the greatest extent; and that such is the extent of the U. S. and the discordance of interests in them, that a majority cannot be trusted with power over a minority.
Formerly, the opinion prevailed that a Republican Govt was in its nature limited to a small sphere; and was in its true character only when the sphere was so small that the people could, in a body, exercise the Govt over themselves.
The history of the ancient Republics, and those of a more modern date, had demonstrated the evils incident to popular assemblages, so quickly formed, so susceptible of contagious passions, so exposed to the misguidance of eloquent & ambitious leaders; and so apt to be tempted by the facility of forming interested majorities, into measures unjust and oppressive to the minor parties.
The introduction of the representative principle into modern Govts. particularly of G. B. and her colonial offsprings, had shown the practicability of popular Govts. in a larger sphere, and that the enlargement of the sphere was a cure for many of the evils inseparable from the popular forms in small communities.
It remained for the people of the U. S., by combining a federal with a republican organization, to enlarge still more the sphere of representative Govt and by convenient partitions & distributions of power, to provide the better for internal justice & order, whilst it afforded the best protection agst. external dangers.
Experience & reflection may be said not only to have exploded the old error, that repubn Govts. could only exist within a small compas, but to have established the important truth, that as representative Govts. are necessary substitutes for popular assemblages; so an association of free communities, each possessing a responsible Govt under a collective authority also responsible, by enlarging the practicable sphere of popular governments, promises a consummation of all the reasonable hopes of the patrons of free Govt
It was long since observed by Montesquieu, has been often repeated since, and, may it not be added, illustrated within the U. S. that in a confederal system, if one of its members happens to stray into pernicious measures, it will be reclaimed by the frowns & the good examples of the others, before the evil example will have infected the others.
But whatever opinions may be formed on the general subjects of confederal systems, or the interpretation of our own, every friend to Republican Govt. ought to raise his voice agst the sweeping denunciation of majority Govts as the most tyrannical and intolerable of all Govts
The Patrons of this new heresy will attempt in vain to mask its anti-republicanism under a contrast between the extent and the discordant interests of the Union, and the limited dimensions and sameness of interests within its members. Passing by the great extent of some of the States, and the fact that these cannot be charged with more unjust & oppressive majorities than the smaller States, it may be observed that the extent of the Union, divided as the powers of Govt. are between it and its members, is found to be within the compass of a successful administration of all the departments of Govt. notwithstanding the objections & anticipations founded on its extent when the Constitution was submitted to the people. It is true that the sphere of action has been and will be not a little enlarged by the territories embraced by the Union. But it will not be denied, that the improvements already made in internal navigation by canals & steamboats, and in turnpikes & railroads, have virtually brought the most distant parts of the Union, in its present extent, much closer together than they were at the date of the Federal Constitution. It is not too much to say, that the facility and quickness of intercommunication throughout the Union is greater now than it formerly was between the remote parts of the State of Virginia.
But if majority Govts. as such, are so formidable, look at the scope for abuses of their power within the individual States, in their division into creditors & debtors, in the distribution of taxes, in the conflicting interests, whether real or supposed, of different parts of the State, in the case of improving roads, cutting canals, &c., to say nothing of many other sources of discordant interests or of party contests, which exist or wd arise if the States were separated from each other. It seems to be forgotten, that the abuses committed within the individual States previous to the present Constitution, by interested or misguided majorities, were among the prominent causes of its adoption, and particularly led to the provision contained in it which prohibits paper emissions and the violations of contracts, and which gives an appellate supremacy to the judicial department of the U. S. Those who framed and ratified the Constitution believed that as power was less likely to be abused by majorities in representative Govts than in democracies, where the people assembled in mass, and less likely in the larger than in the smaller communities, under a representative Govt. inferred also, that by dividing the powers of Govt. and thereby enlarging the practicable sphere of government, unjust majorities would be formed with still more difficulty, and be therefore the less to be dreaded, and whatever may have been the just complaints of unequal laws and sectional partialities under the majority Govt. of the U. S. it may be confidently observed that the abuses have been less frequent and less palpable than those which disfigured the administrations of the State Govts while all the effective powers of sovereignty were separately exercised by them. If bargaining interests and views have created majorities under the federal system, what, it may be asked, was the case in this respect antecedent to this system, and what but for this would now be the case in the State Govts. It has been said that all Govt is an evil. It wd be more proper to say that the necessity of any Govt is a misfortune. This necessity however exists; and the problem to be solved is, not what form of Govt. is perfect, but which of the forms is least imperfect; and here the general question must be between a republican Governt in which the majority rule the minority, and a Govt in which a lesser number or the least number rule the majority. If the republican form is, as all of us agree, to be preferred, the final question must be, what is the structure of it that will best guard against precipitate counsels and factious combinations for unjust purposes, without a sacrifice of the fundamental principle of Republicanism. Those who denounce majority Govts. altogether because they may have an interest in abusing their power, denounce at the same time all Republican Govt and must maintain that minority governments would feel less of the bias of interest or the seductions of power.
As a source of discordant interests within particular States, reference may be made to the diversity in the applications of agricultural labour, more or less visible in all of them. Take for example Virginia herself. Her products for market are in one district Indian corn and cotton; in another, chiefly tobacco; in another, tobo. and wheat; in another, chiefly wheat, rye, and live stock. This diversity of agricultural interests, though greater in Virga than elsewhere, prevails in different degrees within most of the States.
Virga. is a striking example also of a diversity of interests, real or supposed, in the great and agitating subjects of roads and water communications, the improvements of which are little needed in some parts of the State, tho’ of the greatest importance in others; and in the parts needing them much disagreement exists as to the times, modes, & the degrees of the public patronage; leaving room for an abuse of power by majorities, and for majorities made up by affinities of interests, losing sight of the just & general interest.
Even in the great distinctions of interest and of policy generated by the existence of slavery, is it much less between the Eastern & Western districts of Virginia than between the Southern & Northern sections of the Union? If proof were necessary, it would be found in the proceedings of the Virga Convention of 1829-30, and in the Debates of her Legislature in 1830-31. Never were questions more uniformly or more tenaciously decided between the North & South in Congs, than they were on those occasions between the West & the East of Virginia.
But let us bring this question to the test of the tariff itself [out of which it has grown,] and under the influences of which it has been inculcated, that a permanent incompatibility of interests exists in the regulations of foreign commerce between the agricultural and the manufacturing population, rendering it unsafe for the former to be under a majority power when patronizing the latter.
In all countries, the mass of people become, sooner or later, divided mainly into the class which raises food and raw materials, and the class which provides cloathing & the other necessaries and conveniences of life. As hands fail of profitable employment in the culture of the earth, they enter into the latter class. Hence, in the old world, we find the nations everywhere formed into these grand divisions, one or the other being a decided majority of the whole, and the regulations of their relative interests among the most arduous tasks of the Govt. Although the mutuality of interest in the interchanges useful to both may, in one view, be a bond of amity & union, yet when the imposition of taxes whether internal or external takes place, as it must do, the difficulty of equalizing the burden and adjusting the interests between the two classes is always more or less felt. When imposts on foreign commerce have a protective as well as a revenue object, the task of adjustment assumes a peculiar arduousness.
This view of the subject is exemplified in all its features by the fiscal & protective legislation of G. B. and it is worthy of special remark that there the advocates of the protective policy belong to the landed interest; and not as in the U. S. to the manufacturing interest; though in some particulars both interests are suitors for protection agst foreign competition.
But so far as abuses of power are engendered by a division of a community into the agricultural & manufacturing interests and by the necessary ascendency of one or the other as it may comprize the majority, the question to be decided is whether the danger of oppression from this source must not soon arise within the several States themselves, and render a majority Govt as unavoidable an evil in the States individually; as it is represented to be in the States collectively.
That Virginia must soon become manufacturing as well as agricultural, and be divided into these two great interests, is obvious & certain. Manufactures grow out of the labour not needed for agriculture, and labour will cease to be so needed or employed as its products satisfy & satiate the demands for domestic use & for foreign markets. Whatever be the abundance or fertility of the soil, it will not be cultivated when its fruits must perish on hand for want of a market. And is it not manifest that this must be henceforward more & more the case in this State particularly? The earth produces at this time as much as is called for by the home & the foreign markets; while the labouring population, notwithstanding the emigration to the West and the S. West, is fast increasing. Nor can we shut our eyes to the fact, that the rapid increase of the exports of flour & Tobo from a new & more fertile soil will be continually lessening the demand on Virginia for her two great staples, and be forcing her, by the inability to pay for imports by exports, to provide within herself substitutes for the former.
Under every aspect of the subject, it is clear that Virginia must be speedily a manufacturing as well as an agricultural State; that the people will be formed into the same great classes here as elsewhere; that the case of the tariff must of course among other conflicting cases real or supposed be decided by the republican rule of majorities; and, consequently, if majority govts as such, be the worst of Govts those who think & say so cannot be within the pale of the republican faith. They must either join the avowed disciples of aristocracy, oligarchy or monarchy, or look for a Utopia exhibiting a perfect homogeneousness of interests, opinions & feelings nowhere yet found in civilized communities. Into how many parts must Virginia be split before the semblance of such a condition could be found in any of them. In the smallest of the fragments, there would soon be added to previous sources of discord a manufacturing and an agricultural class, with the difficulty experienced in adjusting their relative interests in the regulation of foreign commerce if any, or if none in equalising the burden of internal improvement and of taxation within them. On the supposition that these difficulties could be surmounted, how many other sources of discords to be decided by the majority would remain. Let those who doubt it consult the records of corporations of every size such even as have the greatest apparent simplicity & identity of pursuits and interests.1
In reference to the conflicts of interests between the agricultural and manufacturing States, it is a consoling anticipation that, as far as the legislative encouragements to one may not involve an actual or early compensation to the other, it will accelerate a state of things in which the conflict between them will cease and be succeeded by an interchange of the products profitable to both; converting a source of discord among the States into a new cement of the Union, and giving to the country a supply of its essential wants independent of contingencies and vicissitudes incident to foreign commerce.
It may be objected to majority governments, that the majority, as formed by the Constitution, may be a minority when compared with the popular majority. This is likely to be the case more or less in all elective governments. It is so in many of the States. It will always be so where property is combined with population in the election and apportionment of representation. It must be still more the case with confederacies, in which the members, however unequal in population, have equal votes in the administration of the government. In the compound system of the United States, though much less than in mere confederacies, it also necessarily exists to a certain extent. That this departure from the rule of equality, creating a political and constitutional majority in contradistinction to a numerical majority of the people, may be abused in various degrees oppressive to the majority of the people, is certain; and in modes and degrees so oppressive as to justify ultra or anti-constitutional resorts to adequate relief is equally certain. Still the constitutional majority must be acquiesced in by the constitutional minority, while the Constitution exists. The moment that arrangement is successfully frustrated, the Constitution is at an end. The only remedy, therefore, for the oppressed minority is in the amendment of the Constitution or a subversion of the Constitution. This inference is unavoidable. While the Constitution is in force, the power created by it, whether a popular minority or majority, must be the legitimate power, and obeyed as the only alternative to the dissolution of all government. It is a favourable consideration, in the impossibility of securing in all cases a coincidence of the constitutional and numerical majority, that when the former is the minority, the existence of a numerical majority with justice on its side, and its influence on public opinion, will be a salutary control on the abuse of power by a minority constitutionally possessing it: a control generally of adequate force, where a military force, the disturber of all the ordinary movements of free governments, is not on the side of the minority.
The result of the whole is, that we must refer to the monitory reflection that no government of human device and human administration can be perfect; that that which is the least imperfect is therefore the best government; that the abuses of all other governments have led to the preference of republican government as the best of all governments, because the least imperfect; that the vital principle of republican government is the lex majoris partis, the will of the majority; that if the will of a majority cannot be trusted where there are diversified and conflicting interests, it can be trusted nowhere, because such interests exist everywhere; that if the manufacturing and agricultural interests be of all interests the most conflicting in the most important operations of government, and a majority government over them be the most intolerable of all governments, it must be as intolerable within the States as it is represented to be in the United States; and, finally, that the advocates of the doctrine, to be consistent, must reject it in the former as well as in the latter, and seek a refuge under an authority master of both.
[1 ]From the National Intelligencer, November 24, 1860. December 28, 1832, Charlottesville, Va., “A Friend of Union and State Rights” (Alexander Rives) sent Madison two essays of his defending Madison’s views on secession. Madison’s reply was addressed to the anonymous correspondent, but on January 7, 1833, Rives acknowledged the letter (Mad. MSS.) In printing Madison’s letter the National Intelligencer said.
[1 ]The letter is in the hand of Madison’s Secretary, and was not sent. Tyler was then Senator from Virginia.
[1 ]See his published letter of Augt 4, 1787 to Ed Carrington—Madison’s Note.
[1 ]Clay’s letter said that by 1842, he thought, Northern manufacturers would be able to sell most of their products without protection as cheaply as they could be bought in Europe.—Chic. Hist. Soc. MSS.
[1 ]The draft does not state to whom the letter was addressed. Probably it was not sent at all and was meant as a memorandum for posthumous use.
[1 ]The rest of the draft is not among the Madison MSS. and is supplied from the Works of Madison (Cong. Ed.).