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Topic: The American Revolution and Constitution

1827 - TO SAMUEL HARRISON SMITH. 1 - James Madison, The Writings, vol. 9 (1819-1836) [1910]

Edition used:

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

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

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO SAMUEL HARRISON SMITH.1

Montpellier, Feby 2, 1827.

Dear Sir

I have received, with your favour of Jany. 24, a copy of your biographical Memoir of Ths. Jefferson delivered before the Columbian Institute; and I can not return my thanks without congratulating the Institute, on its choice of the hand to which the preparation of the Memoir was assigned. The subject was worthy of the Scientific and patriotic Body which espoused it, and the manner in which it has been treated, worthy of the subject. The only blemishes to be noted on the face of the memoir are the specks, in which the partiality of the friend betrays itself towards one of the names occasionally mentioned.

I have great respect for your suggestion with respect to the season for making public what I have preserved of the proceedings of the Revolutionary Congress, and the General Convention of 1787. But I have not yet ceased to think that publications of them, posthumous to others as well as myself, may be most delicate, and most useful too, if to be useful at all. As no personal or party views can then be imputed, they will be read with less of personal or party feelings, and consequently with whatever profit may be promised by them. It is true also that after a certain date, the older such things grow, the more they are relished as new; the distance of time like that of space from which they are received, giving them that attractive character.

It cannot be very long however before the living obstacles to the forthcomings in question will be removed. Of the members of Congress during the period embraced, the lamps of all are extinct, with the exception I believe of Rd Peters & myself, and of the signers of the Constitution of all but R. King, Wm. Few & myself; and of the lamps still burning, none can now be far from the socket.

It will be long before this can be said of yours, & that which pairs with it; and I pray you both to be assured of the sincere wish, in which Mrs. M. joins me, that in the mean time every happiness may await you.

TO JONATHAN ELLIOT.

mad. mss.

Montpellier, Feb’y 14, 1827.

Dear Sir

I have just recd your letter of the 12th inst., and with it a copy of the first Vol. of the Debates &c. of the State Conventions which decided on the constitution of the U. States. The Vol. appears a favorable specimen of the manner in which the work is to be executed.

The proceedings of those Assemblies however defective they may be in some respects & inaccurate in others being highly interesting in a political as well as Historical view, a rescue of them from the increasing difficulty of procuring copies, & the possibility of their disappearance altogether, is among the cares which may reasonably be expected from the existing generation by those which are to follow. The obvious provision in the case is that of multiplying copies in individual hands, and in public depositories; and I wish you may find due encouragement in a task which will provide the means for both these safeguards.

I send you a copy as you request of what was published, and is in my possession, of the Debates in the Pennyslvania Convention. These being on one side only, it may be proper to search for the cotemporary publications on the other. I send also the proceedings of the first of the two N. Carolina conventions. If those of the second were ever published, no copy of them has come into my hands.

With friendly respect.

TO HENRY WHEATON.

chic. hist. soc. mss.

Montpr, Feby. 26 & 27 [1827].

Dr. Sir

Since I answered your letter of — it has occurred that I should not shew a respect for your wishes if I failed to fulfil them by suggesting for your consideration the following topics, as far as they may fall within the range of your enlarged edition of the “Life of Mr. Pinkney.”

Without discussing the general character of the Treaty with G. B. in 1794, or wishing to revive animosities which time has soothed to rest, it may be recollected that among the great merits claimed for the Treaty were the indemnity for spoliations on our commerce, and the privilege of trading with British India.

On the first plea of merit, it may be remarked that such was the structure of the article stipulating indemnity, that but for the powerful exertions of our commissioners particularly Mr Pinkney, and finally, the turn of the die that gave them the choice of the Umpire, the Treaty would have failed on that great point. It may be said therefore to have provided for one half only of what was obtained, the chance being equal of losing or gaining the whole.

On the other plea it is to be remarked that the value of the privileged trade depended very materially on its being open to indirect as well as direct voyages to India. Yet in a case turning on this point, which was carried before the Court of King’s Bench, the Chief Justice although he decided in our favour, declared at the same time his belief that the real intention of the negociators was otherwise, and his regret that the article happened to be so worded that the legal rules of interpretation constrained him to decide as he did. The twelve Judges confirmed the decision, presumably, perhaps avowedly, with the same impressions. My memory cannot refer to the source of my information on the subject. The whole case if not already known to you will doubtless be within your reach. Thus had fortune, or the fairness of the British Courts, failed us, the Treaty would have lost much of its favour with not a few of its warmest partizans.

In none of the Comments on the Declaration of the last war, has the more immediate impulse to it been sufficiently brought into view. This was the letter from Castlereagh to Foster, which according to the authority given, the latter put into the hands of the Secretary of State, to be read by him, and by the President also. In that letter it was distinctly & emphatically stated that the orders in Council, to which we had declared we would not submit, would not be repealed, without a repeal of internal measures of France, which not violating any neutral right of the U. S. they had no right to call on France to repeal, and which of course could give to G. B. no imaginable right agst. the U. S. (see the passages in the War Message and in the Committee’s Report in 1812 both founded on the letter without naming it). With this formal notice, no choice remained but between war and degradation, a degradation inviting fresh provocations & rendering war sooner or later inevitable.

It is worthy of particular remark that notwithstanding the peremptory declaration of the British Cabinet in the letter of Castlereagh, such was the distress of the British manufacturers, produced by our prohibititive and restrictive laws, as pressed on the House of Commons by Mr Broughton & others, that the orders in Council were soon after repealed, but not in time to prevent the effect of the declaration that they would not be repealed. The cause of the war lay therefore entirely on the British side. Had the repeal of the orders been substituted for the declaration that they would not be repealed, or had they been repealed but a few weeks sooner, our declaration of war as proceeding from that cause would have been stayed, and negociations on the subject of improvements, the other great cause, would have been pursued with fresh vigor & hopes, under the auspices of success in the case of the orders in council.

The Declaration of War has been charged by G. B. & her partizans with being made in subserviency to the views of Napoleon. The charge is as foolish as it is false. If the war coincided with the views of the Enemy of G. B. and was favored by his operations against her, that assuredly could be no sound objection to the time chosen for extorting justice from her. On the contrary, the co-incidence, tho’ it happened not to be the moving consideration, would have been a rational one; especially as it is not pretended that the U. S. acted in concert with that Chief, or precluded themselves from making peace without any understanding with him; or even from making war on France, in the event of peace with her enemy, and her continued violation of our neutral rights. It was a fair calculation, indeed, when war became unavoidable, or rather after it had commenced, that Napoleon whether successful or not agst Russia, would find full employment for her and her associates, G. B. included; and that it would be required of G. B. by all the powers with whom she was leagued, that she should not divert any part of her resources from the common defence to a war with the U. S. having no adequate object, or rather having objects adverse to the maritime doctrines and interests of every nation combined with her. Had the French Emperor not been broken down as he was, to a degree at variance with all human probability, and which no human sagacity could anticipate, can it be doubted that G. B. would have been constrained by her own situation and the demands of her allies, to listen to our reasonable terms of reconciliation. The moment chosen for the war would therefore have been well chosen if chosen with a reference to the French expedition agst. Russia; and although not so chosen, the coincidence between the war & the expedition promised at the time to be as favorable as it was fortuitous.

But the war was commenced without due preparation: this is another charge. Preparations in all such cases are comparative. The question to be decided is whether the adversary was better prepared than we were; whether delay on our side, after the approach of war would be foreseen on the other, would have made the comparative preparations better for us. As the main theatre of the war was to be in our neighbourhood, and the augmented preparations of the enemy were to be beyond the Atlantic, promptitude of attack was the evident policy of the U. S. It was in fact not the suddenness of the war as an Executive policy, but the tardiness of the Legislative provisions, which gave whatever colour existed for the charge in question. The recommendation of military preparations went from the Executive on the 5th. day of November; and so impressed was that Department of the Government with the advantage of dispatch in the measures to be adopted by Congress, that the Recommendation as was known contemplated a force of a kind and extent only which it was presumed might be made ready within the requisite period. Unfortunately this consideration had not its desired effect on the proceedings in Congress. The laws passed on the subject were delayed, that for filling up the peace establish till Decr. 24, and that for the new army to be raised till Jany 14 and such were the extent and conditions prescribed for the latter, that it could scarcely under any circumstances and by no possibility under the circumstances existing, be forthcoming within the critical season. It may be safely affirmed that the force contemplated by the Executive if brought into the field as soon as it might have been would have been far more adequate to its object than that enacted by the Legislature could have been if brought into the field at the later day required for the purpose. When the time arrived for appointing such a catalogue of officers very few possessing a knowledge of military duty, and for enlisting so great a number of men for the repulsive term of five years and without the possibility of a prompt distribution in the midst of winter throughout the union of the necessary equipments & the usual attractions to the recruiting standards, the difference between the course recommended & that pursued was felt in its distressing force.

The Journals of Congress will shew that the Bills which passed into laws were not even reported till the [14th] of [April] by a Committee which was appointed on the [12th] of [November], a tardiness as strange in its appearance as it was painful in its consequences. Yet with all the disadvantages under which hostilities were commenced, their progress would have been very different, under a proper conduct of the initiative expedition into Upper Canada. The individual at the head of it had been pointed out for the service by very obvious considerations. He had acquired during the war of the Revolution the reputation of a brave & valuable officer: He was of course an experienced one: He had been long the chief magistrate in the quarter contiguous to the Theatre of his projected operation; with the best opportunities of being acquainted with the population and localities on the hostile as well as his own side of the dividing straight: He had also been the Superintendent of our affairs with the Indian tribes holding intercourse with that district of country; a trust which afforded him all the ordinary means of understanding, conciliating, and managing their dispositions. With such qualifications and advantages which seemed to give him a claim above all others to the station assigned to him, he sunk before obstacles at which not an officer near him would have paused; and threw away an entire army, in the moment of entering a career of success, which would have made the war as prosperous in its early stages, and promising in its subsequent course as it was rendered by that disaster oppressive to our resources, and flattering to the hopes of the enemy. By the surrender of Genl Hull the people of Canada, not indisposed to favor us, were turned against us; the Indians were thrown into the service of the enemy; the expence & delay of a new armament were incurred; the western militia & volunteers were withheld from offensive co-operation with the troops elsewhere by the necessity of defending their own frontiers and families agst incursions of the Savages; and a general damp spread over the face of our affairs. What a contrast would the success so easy at the outset of the war have presented! A triumphant army would have seized on Upper Canada and hastened to join the armies at the points below; the important command of Lake Erie would have fallen to us of course; the Indians would have been neutral or submissive to our will; the general spirit of the country would have been kindled into enthusiasm; enlistments would have been accelerated; volunteers would have stepped forward with redoubled confidence & alacrity; and what is not of small moment, the intrigues of the disaffected would have been smothered in their embrio state.1

But in spite of the early frowns of fortune, the war would have pressed with a small portion of its weight but for the great military Revolution in Europe, the most improbable of contingencies, which turned upon us such a body of veteran troops, enured to combat and flushed with victory. Happily this occurrence, so menacing in its aspect, led to exploits which gained for the arms of our Country a reputation invaluable as a guaranty against future aggressions, or a pledge for triumphs over them.

There is a circumstance relating to the Treaty of Ghent which seems to have escaped the notice to which it is entitled. After the close of the British war on the Continent of Europe, and during the negociations for closing it with us, the question arose in the House of Commons, whether the war taxes were to cease with the European war, or to be continued on account of the war with the U. S.; the British Minister having given an assurance previous to the latter that those obnoxious taxes should be repealed on the return of peace. The question was put home to M. Vansittart the Exchequer Minister, who well knowing that the nation would not support at that oppressive expence a war reduced as the objects of it had become, shunned an answer, got the Parliament prorogued till the month of February, and in the meantime the Treaty was concluded at Ghent. I have not the means of refreshing or correcting my memory, but believe you will find on consulting the parliamentary annals of that period that what is stated is substantially true.

Permit me to repeat generally that these paragraphs are intended for your examination, as well as consideration. They may be neither free from errors, nor have a sufficient affinity to your biographical text; and if admitted into it, will need from your pen both developments and adaptations making them your own. Whether admissible or not, they will prove the sincerity of my promise to suggest anything that might occur to my thoughts. And that I may not be without some proofs also that I have not forgotten the other promise of whatever might be caught by my eye, I inclose a small pamphlet published within the period of Mr. Pinkney’s public life, and throwing light on the then state of parties in the U. States. It was drawn up at the pressing instances of my political friends, at the end of a fatiguing session of Congress, and under a great impatience to be with my family on the road homeward but with the advantage of having the whole subject fresh in my memory and familiar to my reflections. The tone pervading it will be explained if not excused by the epoch which gave birth to it.

TO J. K. PAULDING.

mad. mss.

Montpr, Mar. 10, 1827.

Dear Sir,

I have recd. your favor of Feby 28, and read the pamphlet under the same cover. It is a powerful and a piercing lesson on the subject which it exposes. I was not before aware of the abuses committed by the Law-makers or the law-breakers of your State. The picture you give of both, tho’ intended for N. York alone, is a likeness in some degree of what has occurred elsewhere, and I wish it could be in the hands of the Legislators, or, still better, of their Constituents everywhere. Incorporated Companies with proper limitations and guards, may in particular cases, be useful; but they are at best a necessary evil only. Monopolies and perpetuities are objects of just abhorrence. The former are unjust to the existing, the latter usurpations on the rights of future generations. Is it not strange that the Law, which will not permit an individual to bequeath his property to the descendants of his own loins for more than a short and a strictly defined term, should authorize an associated few to entail perpetual and indefeasible appropriations; and that not only to objects visible and tangible, but to particular opinions, consisting, sometimes of the most metaphysical niceties; as is the case with Ecclesiastical Corporations.

With regard to Banks, they have taken too deep and wide a root in social transactions to be got rid of altogether, if that were desirable. In providing a convenient substitute, to a certain extent, for the metallic currency, and a fund of credit which prudence may turn to good account, they have a hold on public opinion, which alone would make it expedient to aim rather at the improvement than the suppression of them. As now generally constituted their advantages whatever they be, are outweighed by the excesses of their paper emissions, and by the partialities and corruption with which they are administered.

What would be the operation of a Bank so modified that the Subscribers should be individually liable pro tanto and pro rata for its obligations, and that the Directors, with adequate salaries paid out of the profits of the Institution should be prohibited from holding any interest in or having any dealings whatever with, the Bank, and be bound moreover by the usual solemnity, to administer their trust with fidelity and impartiality? The idea of some such a modification occurred to me formerly, when the subject engaged more of my attention than it has latterly done. But there was then, as there probably is now, little prospect that such an innovation would be viewed with public favor if thought by better judges to have pretensions to it. . . .

TO MARTIN VAN BUREN.

mad. mss.

Montpellier, Mar. 13, 1827.

Dear Sir,

I have recd your favor of the 3d inst., covering the Report to the Senate on the “Georgia Business.”1 The Report is drawn with the ability which might be expected from the Committee making it. The views which it presents on the subject cannot certainly be complained of by Georgia. The occurrence has been a most painful one, whether regarded in its tendency abroad, or at home. And God grant that it may have a termination at once healing & preventive.

If it be understood that our political System contains no provision for deciding questions between the Union & its members, but that of negotiation, this failing, but that of war, as between separate & Independent Powers, no time ought to be lost in supplying, by some mode or other, the awful omission. What has been called a Government is on that supposition a mere league only; a league with too many Parties, to be uniformly observed, or effectively maintained.

You did well I think in postponing the attempt to amend the phraseology of the Constitution on a point essentially affecting its operative character. The state of the political atmosphere did not promise that discussion and decision on the pure merits of such an amendment, which ought to be desired.

Be pleased to accept with my cordial salutation the renewed expression of my great esteem

TO JOSEPH C. CABELL.

mad. mss.

Montpellier, Mar. 22d, 1827.

My Dear Sir,

. . . I had noticed the loss of the proposed amendment to the Resolution on the subject of the Tariff, and the shaft levelled at yourself. Intemperance in politics is bad enou’; Intolerance has no excuse. The extreme to which the Resolution goes in declaring the protecting duty as it is called unconstitutional is deeply to be regretted.1 It is a ground which cannot be maintained, on which the State will probably stand alone, and which by lessening the confidence of other States in the wisdom of its Councils, must impede the progress of its sounder doctrines. In compliance with your request I offer a few hasty remarks on topics and sources of information which occur to me.

1. The meaning of the Power to regulate commerce is to be sought in the general use of the phrase, in other words, in the objects generally understood to be embraced by the power, when it was inserted in the Constitution.

2. The power has been applied in the form of a tariff, to the encouraging of particular domestic occupations by every existing Commercial Nation.

3. It has been so used & applied particularly & systematically by G. Britain whose commercial vocabulary is the Parent of ours.

4. The inefficacy of the power in relation to manufactures as well as to other objects, when exercised by the States separately, was among the arguments & inducements for revising the Old Confederation, and transferring the power from the States to the Govt. of the U. S. Nor can it be supposed that the States actually engaged in certain branches of Manufactures, and foreseeing an increase of them, would have surrendered the whole power [over] commerce to the General Govt. unless expected to be more effectual for that as well as other purposes, in that depositary, than in their own hands. Nor can it be supposed that any of the States, meant to annihilate such a power, and thereby disarm the Nation from protecting occupations & establishments, important to its defence & independence, agst the subversive policy of foreign Rivals or Enemies. To say that the States may respectively encourage their own manufactures, and may therefore have looked to that resource when the Constitution was formed, is by no means satisfactory. They could not protect them by an impost, if the power of collecting one had been reserved, a partial one having been found impracticable; so, also as to a prohibitory regulation. Nor can they do it by an excise on foreign articles, for the same reason, the trade being necessarily open with other States which might concur in the plan. They could only do it by a bounty, and that bounty procured by a direct tax, a tax unpopular for any purpose, and obviously inadmissible for that. Such a state of things could never have been in contemplation when the Constitution was formed.

5. The Printed Journal of the Convention of 1787 will probably shew positively or negatively that the Commercial power given to Congress embraced the object in question.

6. The proceedings of the State Conventions may also deserve attention.

7. The proceedings & debates of the first Congress under the present Constitution, will shew that the power was generally, perhaps universally, regarded as indisputable.

8. Throughout the succeeding Congresses, till a very late date, the power over commerce has been exercised or admitted, so as to bear on internal objects of utility or policy, without a reference to revenue. The University of Virginia very lately had the benefit of it in a case where revenue was relinquished; a case not questioned, if liable to be so. The Virginia Resolutions, as they have been called, which were proposed in Congress in 1793-4, and approved throughout the State, may perhaps furnish examples.

9. Every President from Genl. W. to Mr. J. Q. Adams inclusive has recognised the power of a tariff in favor of Manufactures, without indicating a doubt, or that a doubt existed anywhere.

10. Virginia appears to be the only State that now denies, or ever did deny the power; nor are there perhaps more than a very few individuals, if a single one, in the State who will not admit the power in favor of internal fabrics or productions necessary for public defence on the water or the land. To bring the protecting duty in those cases, within the war power would require a greater latitude of construction, than to refer them to the power of regulating trade.

11. A construction of the Constitution practised upon or acknowledged for a period, of nearly forty years, has received a national sanction not to be reversed, but by an evidence at least equivalent to the National will. If every new Congress were to disregard a meaning of the instrument uniformly sustained by their predecessors, for such a period there would be less stability in that fundamental law, than is required for the public good, in the ordinary expositions of law. And the case of the Chancellor’s foot, as a substitute for an established measure, would illustrate the greater as well as the lesser evil of uncertainty & mutability.

12. In expounding the Constitution, it is as essential as it is obvious, that the distinction should be kept in view, between the usurpation, and the abuse of a power. That a Tariff for the encouragement of Manufactures may be abused by its excess, by its partiality, or by a noxious selection of its objects, is certain. But so may the exercise of every constitutional power; more especially that of imposing indirect taxes, though limited to the object of revenue. And the abuse cannot be regarded as a breach of the fundamental compact, till it reaches a degree of oppression, so iniquitous and intolerable as to justify civil war, or disunion pregnant with wars, then to be foreign ones. This distinction may be a key to the language of Mr J——n, in the letter you alluded to. It is known that he felt and expressed strongly, his disapprobation of the existing Tariff and its threatened increase.

13. If mere inequality, in imposing taxes, or in other Legislative Acts, be synonymous with unconstitutionality, is there a State in the Union whose constitution would be safe? Complaints of such abuses are heard in every Legislature, at every session; and where is there more of them than in Virginia, or of pretext for them than is furnished by the diversity of her local & other circumstances; to say nothing of her constitution itself, which happens to divide so unequally the very power of making laws?

I wish I could aid the researches to which some of the above paragraphs may lead. But it would not be in my power, if I had at my command, more than I have, the means of doing it. It is a satisfaction to know that the task, if thought worth the trouble, will be in better hands. . . .

TO NICHOLAS BIDDLE.

mad. mss.

Montpr, May 17, 1827

Dr Sir

I thank you very sincerely for the copy of your “Eulogium on Ths. Jefferson.” I have derived from it the peculiar pleasure, which so happy a portraiture could not fail to afford one, who intimately knew, & feelingly admired, the genius, the learn ng, the devotion to public liberty and the many private virtues of the distinguished original. Ably & eloquently as the subject has been handled, all must see that it had not been exhausted; and you are, I am sure, alone in regretting that what remained for some other hand, fell into yours.

Pardon me for remarking that you have been led into an error, in the notice you take of the Revised Code provided for, by the first Independent Legislature of Virga.. The Revisors, were in number not three but five, viz Mr. Jefferson, Mr. Pendleton, Mr. Wythe, Col. Geo. Mason & Col. Ths. L. Lee. The last died & Col. Mason resigned; but not before they had joined in a Consultative meeting. In the distribution of the work among the others Mr. W. was charged with the British Statutes, Mr. P. with the Colonial laws, & Mr. J. with certain parts of the com̃on Law, and the new laws called for by the new State of the Country.

The portion executed by Mr. Jefferson was perhaps the severest of his many intellectual labours. The entire report, as a Model of technical precision, and perspicuous brevity and particularly as comprising samples of the philosophical spirit which ennobled his Legislative policy, may, in spite of its Beccarian Illusions, be worthy of a place among the collections of the Society of which he was once the Presiding Member; and if a Copy be not already there, it will be a pleasure to me to furnish one. . . .

TO THOMAS J. WHARTON.

mad. mss.

Montpr., Aug. [         ], 1827.

Dear Sir

I have duly recd the copy of your Oration on the 4th of July last. In making my acknowledgments, with the passage under my eye, ascribing to me “the first public proposal for the meeting of the Convention to which we are indebted for our present Constitution,” it may be proper to state in a few words the part I had in bringing about that event.

Having witnessed, as a member of the Revolutionary Congress, the inadequacy of the Powers conferred by the “Articles of Confederation,” and having become, after the expiration of my term of service there, a member of the Legislature of Virginia, I felt it to be my duty to spare no efforts to impress on that Body the alarming condition of the U. S. proceeding from that cause, and the evils threatened by delay, in applying a remedy. With this view, propositions were made vesting in Congress the necessary powers to regulate trade then suffering under the monopolising policy abroad, and State collisions at home, and to draw from that source the convenient revenue it was capable of yielding. The propositions tho’ recd. with favorable attention, and at one moment agreed to in a crippled form, were finally frustrated or, rather abandoned. Such however were the impressions which the public discussions had made, that an alternative proposition which had been kept in reserve, being seasonably brought forward by a highly respected member, who having long served in the State Councils without participating in the federal had more the ear of the Legislature on that account, was adopted with little opposition. The proposition invited the other States to concur with Virginia in a Convention of Deputies commissioned to devise & report a uniform system of commercial regulations. Commissioners on the part of the State were at the same time appointed myself of the number. The Convention proposed took place at Annapolis in August, 1786. Being however very partially attended, and it appearing to the members that a rapid progress, aided by the experiment on foot, had been made in ripening the public mind for a radical reform of the Federal polity, they determined to waive the object for which they were appointed, and recommend a Convention with enlarged Powers to be held, the year following in the city of Philada. The Legislature of Virga. happened to be the first that acted on the recommendation, and being a member, the only one of the attending Commissioners at Annapolis, who was so, my best exertions were used in promoting a compliance with it, and in giving to the example the most conciliating form, & all the weight that could be derived from a list of deputies having the name of Washington at its head.

In what is here said of the agency of Virginia and of myself particularly, it is to be understood that no comparison is intended that can derogate from what occurred elsewhere, and may, of course, be less known to me than what is here stated.

I pray you, Sir, to pardon this intrusive explanation, with which I tender you my respectful salutations.

TO JONATHAN ELLIOT.

mad. mss.

Montpr., Novr.. [         ], 1827.

Dr. Sir,

I have recd. your letter of the 12th, in which you observe that you are committing to the Press the 2d Vol of Debates in the State Conventions on the question of adopting the federal Constn; that the Vol will include the debates of the Virga. Convention, and you request of me a correct Copy of the part I bore in them.

On turning to the several pages containing it, in the 2d & 3d Vols of the Original Edition, (the 1st not being at hand,) I find passages, some appearing to be defective, others obscure, if not unintelligible, others again which must be more or less erroneous. These flaws in the Report of my observations may doubtless have been occasioned in part by want of care in expressing them; but probably in part also by a feebleness of voice caused by an imperfect recovery from a fit of illness, or by a relaxed attention in the Stenographer himself incident to long & fatiguing discussions, of his general intelligence & intentional fidelity, no doubt has been suggested.

But in whatever manner the faulty passages are to be accounted for, it might not be safe, nor deemed fair, after a lapse of 40 years, lacking a few months, and without having in the meantime ever revised them, to undertake to make them what it might be believed they ought to be. If I did not confound subsequent ideas, and varied expressions, with the real ones, I might be supposed to do so.

These considerations induce me to leave my share of those debates, as they now stand in print; not doubting that marks of incorrectness on the face of them will save me from an undue degree of responsibility.

I have never seen nor heard of any publication of the Debates in the 2d Convention of N. Carolina, and think it probable that if taken down, they never went to the Press.

I am glad to find you are encouraged to proceed in your plan of collecting & republishing in a convenient form, the proceedings of the State Conventions as far as they are to be obtained; and with my best wishes that you may be duly rewarded for the laudable undertaking, I tender you my friendly respects.

Mrs. Madison desires me to express her acknowledgments for the little volume,1 you politely sent her.

TO GEORGE MASON.

va. hist. soc. mss.

Montpellier, Dec. 29, 1827.

Dear Sir:—

I am much obliged by your polite attention in sending me the Copies of the Remonstrance in behalf of Religious Liberty which with your letter of the 10th came duly to hand. I had supposed they were to be preserved at the office which printed them and referred Mrs. Cutts to that source. Her failure there occasioned the trouble you so kindly assumed. I wished a few copies on account of applications now & then made to me and I preferred the Edition of which you had sent me a sample, as being in the simplest of forms, and for the further reason that the pamphlet edition had inserted in the caption, the term “toleration” not in the Article declaring the Right. The term being of familiar use in the English Code had been admitted into the original Draught of the Declaration of Rights but on a suggestion from myself was readily exchanged for the phraseology excluding it.1 The Biographical tribute you meditate is justly due to the merits of your ancestor Col. Geo. Mason. It is to be regretted that highly distinguished as he was the memorials of them we record, or perhaps otherwise attainable are more scanty than of many of his contemporaries far inferior to him in intellectual powers and in public services. It would afford me much pleasure to be a tributary to your undertaking; but tho’ I had the advantage of being on the list of his personal friends and in several instances of being associated with him in public life I can add little for the pages of your work.

My first acquaintance of him was in the convention of Va. in 1776 which instructed her delegates to propose in Congress a Declaration of Independence and which formed the Declaration of rights and the Constitution for the State. Being young and inexperienced I had of course but little agency in those proceedings. I retain however a perfect impression that he was a leading champion for the Instruction; that he was the author of the Declaration as originally drawn and with very slight variations adopted; and that he was the Master Builder of the Constitution & its main expositor & supporter throughout the discussions which ended in the establishment. How far he may have approved it in all its features as established I am not able to say; and it is the more difficult now to discern unless the private papers left by him should give the information as at that day no debates were taken down and as the explanatory votes, if such there were, may have occurred in Committee of whole only, and of course not appear in the Journals. I have found among my papers a printed copy of the Constitution in one of its stages, which compared with the Instrument finally adopted, shews some of the changes it underwent, but in no instance at whose suggestion or by whose votes.

I have also a printed copy of a sketched constitution which appears to have been the primitive draft on the subject. It is so different in several respects from the other copy in point & from the Constitution finally passed that it may be more than doubted whether it was from the hand of your grandfather. There is a tradition that it was from that of Meriwether Smith whose surviving papers if to be found among his descendants might throw light on the question. I ought to be less at a loss than I am in speaking of these circumstances having been myself an added member to the committee. But such has been the lapse of time that without any notes of what passed and with the many intervening scenes absorbing my attention my memory can not do justice to my wishes. Your grandfather as the Journals shew was at a later day added to the committee being doubtless absent when it was appointed or he never would have been overlooked.

The public situation on which I had the best opportunity of being acquainted with the genius, the opinions & the public labours of your grandfather was that of our co-service in the Convention of 1787 which formed the Constitution of the U. S. The objections which led him to withhold his name from it have been explained by himself. But none who differed from him on some points will deny that he sustained throughout the proceedings of the body the high character of a powerful Reasoner, a profound Statesman and a devoted Republican.

My private intercourse with him was chiefly on occasional visits to Gunston when journeying to & fro from the North, in which his conversations were always a feast to me. But tho’ in a high degree such, my recollection after so long an interval can not particularize them in a form adapted to biographical use. I hope others of his friends still living who enjoyed much more of his Society will be able to do more justice to the fund of instructive observations & interesting anecdotes for which he was celebrated. . . .

[1 ]From the original owned by the late J. Henley Smith, of Washington, D. C.

[1 ]To Henry Lee, February, 1827, Madison wrote:

“The plan in question embraced—1. An expedition into Lake Huron with 4 or 5 vessels, & 800 or 1,000 men, to obtain possession of Mackinaw & St. Josephs. 2. An expedition with the forces under General Brown, to Burlington Heights preparatory to further operations for reducing the Peninsula; the expedition to depend on Chauncey’s getting the command of Lake Ontario without which supplies could not be secured. 3. the building of 14 or 15 armed boats at Sacket’s Harbour, so to command the St Lawrence under the protection of posts to be supplied from Izard’s command, as to intercept the communication between Montreal & Kingston. 4. The main force under Izard to make demonstrations towards Montreal, in order to divert the Enemy from operations westward, and afford the chance of compelling Prevost to fight disadvantageously, or break up his connection with Lake Champlaine.



“I pass to the reference you make to certain appointments both for the army and for the Cabinet. Selections for office, always liable to error was particularly so for military command at the commencement of the late war. The survivors of the Revolutionary band who alone had been instructed by experience in the field were but few; and of those several of the most distinguished, were disqualified by age or infirmities, or precluded by foreknown objections in the advisory Branch of the appointing Department. This last cause deprived the army of services which would have been very acceptable to the nominating Branch. Among those who had acquired a mere disciplinary experience, no sufficient criterion of military capacity existed; and of course they had to undergo tests of another sort, before they were marked out for high military trusts.



“That the appointment of Hull was unfortunate, was but too soon made certain. Yet he was not only recommended from respectable quarters, but by his ostensible fitness also. He was a man of good understanding. He had served with reputation, and even some eclât in the Revolutionary Army; He had been the Govr. at Detroit, and could not but be acquainted with the population & localities on the hostile as well as on his own side of the boundary; And he had been the superintendant of our Affairs with the Indians, a knowledge of which was of much importance. These advantages seemed to give him not only a preference, but an appropriateness for his trust. They were nevertheless fallacious; and it is not unworthy of recollection, that after the disaster which proved it, some who had been most warm in his recommendation, were most ready to condemn the confidence put in him.



“The appointment of Genl. Dearborn is also very unfavorably noticed. To say nothing of his acknowledged bravery & firmness, his military experience & local knowledge acquired during the Revolutionary war, had their value. And he had administered the Department of War for 8 years, to the satisfaction of the then President who thought well not only of his specific qualifications; but generally of his sound and practical judgment. To these considerations were added a public standing calculated to repress jealousies in others, not easy to be guarded agst. in such cases, and always of the worst tendency; It may well be questioned, whether any substituted appointment would at the time have been more satisfactory.



“The advanced position in the service, given to General Smyth was much to be regretted. Some of the circumstances which led to it were specious, and the scale & cultivation of his understanding very respectable, but his talent for military command was equally mistaken by himself, and by his friends.



“Before I advert to your review of Cabinet appointments, I must allude to the field of choice as narrowed by considerations never to be wholly disregarded. Besides the more essential requisites in the candidate, an eye must be had to his political principles and connexions, his personal temper and habits, his relations of feelings towards those with whom he is to be associated; and the quarter of the Union to which he belongs. These considerations, the last as little as any are not to be disregarded, but in cases where qualifications of a transcendant order, designate individuals, and silence the patrons of competitors whilst they satisfy the public opinion. Add to the whole, the necessary sanction of the Senate; and what may also be refused, the necessary consent of the most eligible individual: You are probably very little aware of the number of refusals experienced during the period to which your observations apply.



“I must be allowed to express my surprize at the unfavorable view taken of the appointment of Mr. Jones. I do not hesitate to pronounce him the fittest minister who had ever been charged with the Navy Department. With a strong mind well stored with the requisite knowledge, he possessed great energy of character and indefatigable application to business. I cannot doubt that the evidence of his real capacity, his appropriate acquirements, and his effective exertions, in a most arduous service, & the most trying scenes, now to be found on the files of the Department, as well as my own, would reverse the opinion which seems to have been formed of him. Nor in doing him justice ought it to be omitted that he had on his hands, the Treasury as well as Navy Department, at a time when both called for unusual attention, and that he did not shrink from the former, for which he proved himself qualified, till the double burden became evidently insupportable.



“Mr. Campbell was the only member of the Cabinet from the West whose claims to a representation in it, were not unworthy of attention under existing circumstances. It was not indeed the quarter most likely to furnish fiscal qualifications; but it is certain that he had turned his thoughts that way, whilst in public life more than appears to have been generally known. He was, moreover, a man of sound sense, of pure integrity, and of great application. He held the office at a period when the difficulties were of a sort scarcely manageable by the ablest hands, and when the ablest hands were least willing to encounter them. It happened also that soon after he entered on his task, his ill health commenced, & continued to increase till it compelled him to leave the department.



“Of Mr. Crowninshield it may be said without claiming too much for him, that he had not only recd. public testimonies of respectability in a quarter of the Union feeling a deep interest in the Department to which he was called, but added to a stock of practical good sense, a useful stock of nautical experience and information; and an accommodating disposition particularly valuable in the head of that Department, since the auxiliary establishment of the Navy Board, on which the labouring oar now devolves. Superior talents without such a disposition, would not suit the delicacy of the legal relations between the Secretary & the Board, and the danger of collisions of very embarrassing tendency.



“As you have made no reference to Docr. Eustis, I ought perhaps to observe a like silence. But having gone so far on the occasion, I am tempted to do him the justice of saying that he was an acceptable member of the Cabinet, that he possessed an accomplished mind, a useful knowledge on military subjects derived from his connexion with the Revolutionary army, and a vigilant superintendance of subordinate agents; and that his retreat from his station, proceeded from causes not inconsistent with these endowments. With the overload of duties required by military preparations on the great scale enjoined by law, and the refusal to him of assistants asked for who were ridiculed as crutches for official infirmity, no minister could have sustained himself; unless in the enjoyment of an implicit confidence on the part of the public, ready to account for every failure, without an impeachment of his official competency. In ordinary times Eustis wd. have satisfied public expectation, & even in those he had to struggle with, the result wd. have been very different with organizations for the War Dept. equivalent to what has been found so useful in a time of peace for an army reduced to so small an establishment.—Mad. MSS.

[1 ]The report was submitted by Thomas H. Benton, March 1.

[1 ]“You will perceive that the Genl. Assembly has again pronounced the opinion that Duties for the protection of domestic manufactures are unconstitutional. I made an effort to amend the resolution in the Senate so as to declare the increased duties of 1824 impolitic and unwise, but lost the motion by a vote of 14 to 8. . . . In the debate in the House of Delegates, Genl. Taylor quoted the opinion of Mr. Jefferson as expressed in his messages to Congress. Mr Giles declared in reply that he knew that Mr. Jefferson had changed his opinion as to the Constitutionality of protecting Duties, & referred to a private letter which he had received from him. I have not seen the letter myself: but I believe a letter has been shewn to some of the members.” Cabell to Madison, Richmond, March 12, 1827.—Mad. MSS. See Jefferson to Giles, December 25, 1825. (Writings, Ford, xii., 424, Federal Edition.)

[1 ]Wanderings in Washington.—Madison’s Note.

[1 ]Ante, Vol. I., p. 32.