In January 1783 James Madison headed a committee that began gathering books
for a Library of Congress, and Jefferson compiled a list of 2,640 books
that could be purchased in Europe as well as catalogs of booksellers in Philadelphia.
Madison supported Robert Morris who advised that Congress
needed an impost and general revenues, and Madison wrote
on January 22 in a letter to Edmund Randolph,
The repeal of the impost act by Virginia is still
considered as covered with some degree of mystery.
Colonel Bland’s representations do not remove the veil.
Indeed, he seems as much astonished at it,
and as unable to penetrate it, as any of us.
Many have surmised that the enmity of Doctor Lee
against Morris is at the bottom of it.
But had that been the case, it can scarcely be supposed
that the repeal would have passed so quietly.
By this time, I presume, you will be able to furnish me
with its true history, and I ask the favor of you to do it.
Virginia could never have cut off this source of public relief
at a more unlucky crisis than when she is protesting her
inability to comply with the continental requisitions.
She will, I hope, be yet made sensible of the
impropriety of the step she has taken,
and make amends by a more liberal grant.
Congress cannot abandon the plan
as long as there is a spark of hope.
Nay, other plans on a like principle must be added.
Justice, gratitude, our reputation abroad, and our tranquility
at home require provision for a debt of not less than fifty
millions of dollars, and I pronounce that this provision will
not be adequately met by separate acts of the States.
If there are not revenue laws which operate at the same
time through all the States, and are exempt from the control
of each—the mutual jealousies which begin already to
appear among them will assuredly defraud both our
foreign and domestic creditors of their just claims.
The deputies of the army are still here,
urging the objects of their mission.
Congress are thoroughly impressed with the justice of them,
and are disposed to do everything which depends on them.
But what can a Virginia Delegate say to them,
whose constituents declare that they are unable
to make the necessary contributions, and unwilling
to establish funds for obtaining them elsewhere?
The valuation of lands is still under consideration.1
On January 28 Madison made a speech on the issues of federal taxation,
and this is part of what he said,
It ought to be carefully remembered that this subject
was brought before Congress by a very solemn appeal
from the army to the justice & gratitude of their Country.
Besides immediate pay, they ask for
permanent security for arrears.
Is not this request a reasonable one?
Will it be just or politic to pass over the only adequate
security that can be devised, & instead of fulfilling
the stipulations of the U. S. to them, to leave them
to seek their rewards separately from the States
to which they respectively belong?
The patience of the army has been equal to their bravery,
but that patience must have its limits; and the result of
despair cannot be foreseen, nor ought it to be risked.
It has been objected against a general revenue
that it contravenes the Articles of Confederation.
These Articles, as has been observed, have
presupposed the necessity of alterations in
the federal system & have left a door open for them.
They moreover authorize Congress to borrow money.
Now in order to borrow money permanent & certain
provision is necessary, & if this provision cannot be
made in any other way as has been shown, a general
revenue is within the spirit of the Confederation.
It has been objected that such a revenue is
subversive of the sovereignty & liberty of the States.
If it were to be assumed without the free gift
of the States, this objection might be of force,
but no assumption is proposed.
In fact Congress are already invested by the States with the
constitutional authority over the purse as well as the sword.
A general revenue would only give this authority
a more certain & equal efficacy.
They have a right to fix the quantum of money
necessary for the common purposes.
The right of the States is limited to the mode of supply.
A requisition of Congress on the States for money
is as much a law to them; as their revenue acts
when passed are laws to their respective Citizens.
If for want of the faculty or means of enforcing a requisition,
the law of Congress proves inefficient; does it not follow
that in order to fulfill the views of the federal constitution,
such a change should be made as will render it efficient?
Without such efficiency the end of this Constitution
which is to preserve order & justice among the members
of the Union, must fail; as without a like efficiency
would the end of State constitutions which is to
preserve like order & justice among its members.2
On February 21 Madison gave a speech on revenues:
Mr. Madison said that he had observed throughout the
proceedings of Congress relative to the establishment of
such funds that the power delegated to Congress by the
Confederation had been very differently construed by
different members & that this difference of construction
had materially affected their reasonings & opinions on the
several propositions which had been made; that in particular
it had been represented by sundry members that Congress
was merely an Executive body; and therefore that it was
inconsistent with the principles of liberty & the spirit of the
Constitution to submit to them a permanent revenue which
would be placing the purse & the sword in the same hands;
that he wished the true doctrine of the confederation
to be ascertained as it might perhaps remove some
embarrassments; and towards that end would
offer his ideas on the subject.
He said that he did not conceive in the first place that
the opinion was sound that the power of Congress in
cases of revenue was in no respect Legislative, but merely
Executive: and in the second place that admitting the power
to be Executive a permanent revenue collected & dispensed
by them in the discharge of the debts to which it should be
appropriated, would be inconsistent with the nature of an
Executive body or dangerous to the liberties of the republic.
As to the first opinion he observed that by the articles
of Confederation Congress had clearly & expressly the
right to fix the quantum of revenue necessary for the
public exigences, & to require the same from the States
respectively in proportion to the value of their land; that the
requisitions thus made were a law to the States, as much as
the acts of the latter for complying with them were a law to
their individual members: that the federal constitution was
as sacred & obligatory as the internal constitutions of the
several States; and that nothing could justify the States in
disobeying acts warranted by it, but some previous abuse
or infraction on the part of Congress; that as a proof that
the power of fixing the quantum & making requisitions of
money, was considered as a legislative power over the
purse, he would appeal to the proposition made by the
British Minister of giving this power to the British Parliament
& leaving to the American assemblies the privilege of
complying in their own modes; & to the reasonings of
Congress & the several States on that proposition.
He observed further that by the Articles of Confederation
was delegated to Congress a right to borrow money
indefinitely, and emit bills of Credit which was a
species of borrowing, for repayment & redemption
of which the faith of the States was pledged
& their legislatures constitutionally bound.
He asked whether these powers were reconcilable
with the idea that Congress was a body merely Executive?
He asked what would be thought in Great Britain from
whose constitution our Political reasonings were so much
drawn, of an attempt to prove that a power of making
requisitions of money on the Parliament, & of borrowing
money for discharge of which the Parliament should be
bound, might be annexed to the Crown without changing
its quality of an Executive branch; and that the leaving
to the Parliament the mode only of complying with the
requisitions of the Crown, would be leaving to it
its supreme & exclusive power of Legislation?
As to the second point he referred again to the British
Constitution & the mode in which provision was made for
the public debts; observing that although the Executive
had no authority to contract a debt; yet that when a
debt had been authorized or admitted by the parliament
a permanent & irrevocable revenue was granted by the
Legislature, to be collected & dispensed by the Executive;
and that this practice had never been deemed a subversion
of the Constitution or a dangerous association of a power
over the purse with the power of the Sword.
If these observations were just as he conceived them
to be, the establishment of a permanent revenue not
by any assumed authority of Congress, but by the
authority of the States at the recommendation of Congress:
to be collected & applied by the latter to the discharge
of the public debts, could not be deemed inconsistent
with the spirit of the federal constitution, or subversive
of the principles of liberty; and that all objections drawn
from such a supposition ought to be withdrawn.
Whether other objections of sufficient weight might not
lie against such an establishment was another question.
For his part although for various reasons he had wished for
such a plan as most eligible, he had never been sanguine
that it was practicable & the discussions which had taken
place had finally satisfied him that it would be necessary to
limit the call for a general revenue to duties on commerce &
to call for the deficiency in the most permanent way that
could be reconciled with a revenue established within each
State separately & appropriated to the Common Treasury.
He said the rule which he had laid down to himself in this
business was to concur in every arrangement that should
appear necessary for an honorable & just fulfilment of the
public engagements; & in no measure tending to augment
the power of Congress which should appear to be
unnecessary; and particularly disclaimed the idea
of perpetuating a public debt.3On 6 March 1783 Madison submitted a financial plan that
provided for the general government assuming the debts of
the states for reasonable expenses during the war.
He also rejected discriminating against different kinds of creditors.
Madison on April 25 gave this address to the states’ representative
that the Congress approved the next day:The prospect which has for some time existed, and which
is now happily realized, of a successful termination of the
war, together with the critical exigences of public affairs
have made it the duty of Congress to review and provide for
the debts which the war has left upon the U. S. and to look
forward to the means of obviating dangers which may
interrupt the harmony and tranquility of the Confederacy.
The result of their mature and solemn deliberations
on these great objects is contained in their several
recommendations of the 18th instant herewith transmitted.
Although these recommendations speak themselves the
principles on which they are founded, as well as the ends
which they propose, it will not be improper to enter into
a few explanations and remarks, in order to place in
a stronger view the necessity of complying with them.
The first measure recommended is effectual
provision for the debts of the U. S.
The amount of these debts as far as they can
now be ascertained is 42,000,375 Dollars,
as will appear by the Schedule No 1.
To discharge the principal of this aggregate debt at once
or in any short period is, evidently, not within the compass
of our resources, and even if it could be accomplished,
both the true interest and the ease of the community
would require that the debt itself should be left to
a course of gradual extinguishment, and certain funds be
provided for paying in the meantime the annual interest.
The amount of the annual interest, as will appear by the
paper last referred to, is computed to be 2,415,956 Dollars.
Funds therefore which will certainly and punctually
produce this annual sum at least, must be provided.
In devising these funds Congress did not overlook
the mode of supplying the common Treasury
provided by the articles of confederation.
But after the most respectful consideration of that mode,
they were constrained to regard it as inadequate
and inapplicable to the form into which
the public debt must be thrown.
The delays and uncertainties incident to a revenue
to be established and collected from time to time
by thirteen independent authorities, is at first view
irreconcilable with the punctuality essential
in the discharge of the interest of a national debt.
Our own experience, after making every
allowance for transient impediments,
has been a sufficient illustration of this truth.
Some departure therefore in the recommendations of
Congress from the federal constitution, was unavoidable;
but it will be found to be as small as could be reconciled
with the object in view, and to be supported besides
by solid considerations of interest and sound policy.
The fund which first presented itself on this,
as it did on a former occasion, was a tax on imports.
The reasons which recommended this branch of revenue,
have heretofore been stated in an act of which a copy No. 2
is now forwarded and need not be here repeated.
It will suffice to recapitulate, that taxes on consumption are
always least burdensome, because they are least felt,
and are borne too by those who are both willing and able to
pay them; that of all taxes on consumption, those on foreign
commerce are most compatible with the genius and policy of
free States; that from the relative positions of some of the
more commercial States, it will be impossible to bring this
essential resource into use without a concerted uniformity;
that this uniformity cannot be concerted through any channel
so properly as through congress, nor for any purpose so
aptly as for paying the debts of a Revolution, from which
an unbounded freedom has accrued to commerce.
In renewing this proposition to the States
we have not been unmindful of the objections which
heretofore frustrated the unanimous adoption of it.
We have limited the duration of the revenue to the term
of 25 years: and we have left to the States themselves
the appointment of the officers who are to collect it.
If the strict maxims of national credit alone were
to be consulted, the revenue ought manifestly to be
co-existent with the object of it; and the collection
placed in every respect under that authority which is
to dispense the former, and is responsible for the latter.
These relaxations will we trust, be regarded on one hand as
the effect of a disposition in Congress to attend at all times
to the sentiments of those whom they serve; and on the
other hand as a proof of their anxious desire that provision
may be made in some way or other for an honorable and
just fulfilment of the engagements which they have formed.
To render this fund as productive as possible and at the
same time to narrow the room for collusions and frauds, it
has been judged an improvement of the plan, to recommend
a liberal duty on such articles as are most susceptible of
a tax according to their quantity and are of most equal
and general consumption; leaving all other articles, as
heretofore proposed, to be taxed according to their value.
The amount of this fund is
computed to be 915,956 Dollars.
The estimates on which the computation is made
are detailed in paper No. 3.
Accuracy in the first essay on so complex
& fluctuating a subject is not to be expected.
It is presumed to be as near the truth as
the defect of proper materials would admit.
The residue of the computed interest is 1,500,000 Dollars,
and is referred to the States to be provided for
by such funds as they may judge most convenient.
Here again the strict maxims of public credit
gave way to the desire of Congress to conform
to the sentiments of their constituents.
It ought not to be omitted however with respect
to this portion of the revenue, that the mode in
which it is to be supplied, varies so little from that
pointed out in the articles of confederation, and the
variations are so conducive to the great object proposed,
that a ready and unqualified compliance on the part
of the States may be the more justly expected.
In fixing the quotas of this sum Congress as may
be well imagined, were guided by very imperfect lights
and some Inequalities may consequently have ensued.
These however can be but temporary, and as far as
they may exist at all, will be redressed by a retrospective
adjustment, as soon as a constitutional rule can be applied.
The necessity of making the two foregoing provisions
one indivisible and irrevocable act is apparent.
Without the first quality, partial provision only might be
made where complete provision is essential; nay as some
States might prefer & adopt one of the funds only,
and the other States the other fund only, it might happen
that no provision at all would be made: Without the second,
a single State out of the thirteen might at any time involve
the nation in bankruptcy, the mere practicability of which
would be a fatal bar to the establishment of national credit.
Instead of enlarging on these topics, two observations are
submitted to the justice and wisdom of the Legislatures.
First: The present Creditors, or rather the domestic part
of them, having either made their loans for a period
which has expired, or having become creditors in the first
instance involuntarily, are entitled on the clear principles of
justice & good faith, to demand the principal of their credits,
instead of accepting the annual interest.
It is necessary, therefore, as the principal cannot be paid to
them on demand, that the interest should be so effectually
and satisfactorily secured, as to enable them if they incline,
to transfer their stock at its full value.
Secondly: if the funds be so firmly constituted as to inspire
a thorough & universal confidence, may it not be hoped,
that the capital of the domestic debt which bears the
high interest of 6 percent, may be cancelled by other
loans obtained at a more moderate interest?
The saving by such an operation would be a clear one
and might be a considerable one.
As a proof of the necessity of substantial funds for the
support of our credit abroad we refer to paper No 4.
Thus much for the interest of the national debt.
For the discharge of the principal within the term limited,
we rely on the natural increase of the revenue from
Commerce, on requisitions to be made from time to time
for that purpose, as circumstances may dictate,
and on the prospects of vacant territory.
If these resources should prove inadequate,
it will be necessary, at the expiration of 25 years
to continue the funds now recommended or to establish
such others as may then be found more convenient.
With a view to the resource last mentioned,
as well as to obviate disagreeable controversies,
and confusions, Congress have included in their
present recommendations, a renewal of those of the
6th day of September and of the 10th day of October 1780.
In both those respects a liberal and final accommodation
of all interfering claims of vacant territory, is an object
which cannot be pressed with too much solicitude.
The last object recommended is a
constitutional change of the rule, by which
a partition of the common burdens is to be made.
The expediency and even necessity of such a change has
been sufficiently enforced by the local injustice and
discontents which have proceeded from valuations of the
soil in every State where the experiment has been made.
But how infinitely must these evils be increased, on a
comparison of such valuations among the states themselves!
On whatever side indeed this rule be surveyed,
the execution of it must be attended
with the most serious difficulties.
If the valuations be referred to the authorities of the several
States, a general satisfaction is not to be hoped for:
If they be executed by officers of the U. S. traversing
the Country for that purpose, besides the inequalities
against which this mode would be no security,
the expense would be both enormous and obnoxious:
If the mode taken in the act of the 17 day of February
last which was deemed on the whole least objectionable, be
adhered to, still the insufficiency of the data to the purpose
to which they are to be applied, must greatly impair, if not
utterly destroy all confidence in the accuracy of the result;
not to mention that as far as the result can be at all a just
one, it will be indebted for the advantage to the principle
on which the rule proposed to be substituted is founded.
This rule although not free from objections,
is liable to fewer than any other that could be devised.
The only material difficulty which attended it in the
deliberations of Congress, was to fix the proper difference
between the labor and industry of free inhabitants,
and of all other inhabitants.
The ratio ultimately agreed on was the effect of mutual
concessions, and if it should be supposed not to correspond
precisely with the fact, no doubt ought to be entertained
that an equal spirit of accommodation among the several
Legislatures will prevail against little inequalities
which may be calculated on one side or on the other.
But notwithstanding the confidence of Congress as to the
success of this proposition, it is their duty to recollect
that the event may possibly disappoint them, and to request
that measures may still be pursued for obtaining &
transmitting the information called for in the act of 17
February last, which in such event will be essential.
The plan thus communicated and explained by Congress
must now receive its fate from their Constituents.
All the objects comprised in it are conceived to be of great
importance to the happiness of this confederated republic,
are necessary to render the fruits of the Revolution,
a full reward for the blood, the toils, the cares
and the calamities which have purchased it.
But the object of which the necessity will be peculiarly felt,
and which it is peculiarly the duty of Congress to inculcate,
is the provision recommended for the national debt.
Although this debt is greater than could have been wished,
it is still less on the whole than could have been expected,
and when referred to the cause in which it has been
incurred, and compared with the burdens which wars of
ambition and of vain glory have entailed on other nations,
ought to be borne not only with cheerfulness but with pride.
But the magnitude of the debt
makes no part of the question.
It is sufficient that the debt has been fairly contracted
and that justice & good faith demand that
it should be fully discharged.
Congress had no option
but between different modes of discharging it.
The same option is the only one
that can exist with the States.
The mode which has after long & elaborate discussion been
preferred, is, we are persuaded, the least objectionable
of any that would have been equal to the purpose.
Under this persuasion, we call upon the justice & plighted
faith of the several States to give it its proper effect,
to reflect on the consequences of rejecting it, and to
remember that Congress will not be answerable for them.
If other motives than that of justice could be requisite
on this occasion, no nation could ever feel stronger.
For to whom are the debts to be paid?
To an Ally, in the first place, who to the exertion of his
arms in support of our cause, has added the succors of
his Treasure; who to his important loans has added liberal
donations; and whose loans themselves carry the
impression of his magnanimity and friendship.
For more exact information on this point
we refer to paper No. 5.
To individuals in a foreign country in the next place
who were the first to give so precious a token of their
confidence in our justice, and of their friendship for our
cause; and who are members of a republic which
was second in espousing our rank among nations.
For the claims and expectations of this class
of Creditors we refer to paper No. 6.
Another class of Creditors is that illustrious & patriotic
band of fellow Citizens, whose blood and whose bravery
have defended the liberties of their Country, who have
patiently borne, among other distresses the privation of
their stipends, whilst the distresses of their Country
disabled it from bestowing them; and who even now
ask for no more than such a portion of their dues as will
enable them to retire from the field of victory & glory
into the bosom of peace & private citizenship, and for
such effectual security for the residue of their claims
as their Country is now unquestionably able to provide.
For a full view of their sentiments and wishes on this subject
we transmit the paper No. 7, and as a fresh & lively
instance of their superiority to every species of seduction
from the paths of virtue & of honor, we add the paper No. 8.
The remaining class of Creditors is composed partly
of such of our fellow Citizens as originally lent to the public
the use of their funds, or have since manifested most
confidence in their Country by receiving transfers
from the lenders; and partly of those whose property has
been either advanced or assumed for the public service.
To discriminate the merits of these several descriptions of
creditors would be a task equally unnecessary & invidious.
If the voice of humanity plead more loudly
in favor of some than of others; the voice of policy,
no less than of justice pleads in favor of all.
A wise nation will never permit those who relieve
the wants of their Country, or who rely most on its faith,
its firmness and its resources, when either of them
is distrusted, to suffer by the event.
Let it be remembered finally that it has ever been
the pride and boast of America, that the rights
for which she contended were the rights of human nature.
By the blessing of the Author of these rights on the means
exerted for their defense, they have prevailed against all
opposition and form the basis of thirteen independent States.
No instance has heretofore occurred, nor can any instance
be expected hereafter to occur, in which the unadulterated
forms of Republican Government can pretend to so fair
an opportunity of justifying themselves by their fruits.
In this view the Citizens of the U. S. are responsible for
the greatest trust ever confided to a Political Society.
If justice, good faith, honor, gratitude & all the other
Qualities which ennoble the character of a nation,
and fulfil the ends of Government, be the fruits of our
establishments, the cause of liberty will acquire
a dignity and lustre, which it has never yet enjoyed;
and an example will be set which cannot but have
the most favorable influence on the rights of mankind.
If on the other side, our Governments should be
unfortunately blotted with the reverse of these
cardinal and essential Virtues, the great cause which
we have engaged to vindicate, will be dishonored &
betrayed; the last & fairest experiment in favor of the
rights of human nature will be turned against them;
and their patrons & friends exposed to be insulted
& silenced by the votaries of Tyranny and Usurpation.4
While he was in Philadelphia, Madison in a letter to his father
on 3 September 1783 wrote about his black “servant” Billie:
I shall return to Princeton tomorrow;
my final leaving of which will depend on events,
but cannot now be at any very great distance.
On a view of all circumstances I have judged it
most prudent not to force Billey back to Virginia
even if could be done; and have accordingly
taken measures for his final separation from me.
I am persuaded his mind is too thoroughly tainted
to be a fit companion for fellow slaves in Virginia.
The laws here do not admit of his
being sold for more than 7 years.
I do not expect to get near the worth of him; but cannot
think of punishing him by transportation merely for coveting
that liberty for which we have paid the price of so much
blood, and have proclaimed so often to be the right,
& worthy the pursuit, of every human being.5
In 1780 Pennsylvania had reduced slavery by freeing children born to slaves
and prohibiting slave-owners from selling slaves to other masters.
Billie had been serving Madison in Philadelphia for three and a half years.
Madison knew that selling him to the West Indies
would mean a short and miserable life.
Instead he sold Billie for a low price under Pennsylvania law
that freed an indentured servant after seven years.
Then Madison hired Billie and paid him to be his valet.
When Billie became free, he took the name “William Gardner.”
A mutiny in Philadelphia began on 21 June 1783,
and the soldiers besieged the statehouse.
The Congress moved to Princeton on June 24.
Madison stayed in Philadelphia and commuted.
Eventually the Congress moved on November 26 to Annapolis, Maryland.
Madison and his friend Jefferson traveled together,
and Madison continued on to his home at Montpelier in Virginia.
Madison studied law, and he was elected to the Virginia House of Delegates
on 22 April 1784 and represented Orange County.
He attended the session in Richmond in May and June.
In September and October of 1784 he traveled with Lafayette to Fort Stanwix
in New York’s Mohawk Valley to negotiate with the Iroquois.
Madison after returning wrote this about Lafayette
in a letter to Thomas Jefferson on October 17:
The time I have lately passed with the Marquis has
given me a pretty thorough insight into his character.
With great natural frankness of temper he unites
much address with very considerable talents.
In his politics, he says, his three hobbyhorses
are the alliance between France and the U. S.,
the union of the latter and the manumission of the slaves.
The two former are the dearer to him
as they are connected with his personal glory.
The last does him real honor,
as it is a proof of his humanity.
In a word, I take him to be as amiable a man as
can be imagined and as sincere an American as
any Frenchman can be; one whose past services
gratitude compels us to acknowledge, and whose
future friendship prudence requires us to cultivate.6
Madison in 1784 wrote 26 letters to Thomas Jefferson
even though Jefferson was in France for half of the year.
In that year Madison received 15 letters from Jefferson,
mostly during the first half of the year before he left Virginia.
Jefferson in a fairly long letter to Madison
on 20 February 1784 from Annapolis wrote,
I find Congress every moment stopped
by questions whether the most trifling money
propositions are not above the powers of
seven states as being appropriations of money.
My idea is that the estimate for the year &
requisition grounded on that, whereon the sums
to be allowed to each department are stated,
is the general appropriation which requires 9 states,
& that the detailing it out provided they do not go beyond
these sums may be done by the subordinate officers of
the federal government or by a Congress of 7 states.
I wish you to think of this &
give me your thoughts on the subject.7
Madison wrote a long response to Jefferson on March 16 that began this way:
I cannot apprehend that any difficulties can ensue in Europe
from the involuntary & immaterial delay of the ratification
of the peace, or if there should that any imputations
can be devised which will not be repelled by the
collective force of the reasons in the intended protest;
some of which singly taken are unanswerable.
As you no doubt had recourse to authorities which I have
no opportunity of consulting, I probably err, in supposing the
right of the Sovereign to reject the act of his Plenipotentiary
to be more circumscribed than you lay it down.
I recollect well that an implied condition is annexed
by the usage of Nations to a Plenipotentiary commission,
but should not have extended the implication beyond
cases where some palpable & material default in the
minister could be alleged by the Sovereign.
Waiving some such plea the language both of the
Commission and of reason seems to fix on the latter as
clear an engagement to fulfil his promise to ratify a treaty,
as to fulfil the promises of a treaty which he has ratified.
In both cases one would pronounce the obligation equally
personal to the Sovereign, and a failure on his part without
some absolving circumstance, equally a breach of faith.
The project of affixing the Seal of the U. S. by 7 States
to an Act which had been just admitted to require nine,
must have stood self-condemned; and though it might
have produced a temporary deception abroad, must
have been immediately detected at home, and have
finally dishonored the federal Councils everywhere.
The competency of 7 States to a Treaty of Peace
has often been a subject of debate in Congress
and has sometimes been admitted into their practice,
at least so far as to issue fresh instructions.
The reasoning employed in defense of the doctrine has been
“that the cases which require 9 States, being exceptions to
the general authority of 7 States, ought to be taken strictly;
that in the enumeration of the powers of Congress in the
first clause of article 9 of the Confederation, the power of
entering into treaties and alliances is contradistinguished
from that of determining on peace & war & even
separated by the intervening power of sending &
receiving ambassadors; that the excepting clause
therefore in which “Treaties & alliances” ought to be taken
in the same confined sense, and in which the power of
determining on peace is omitted, cannot be extended
by construction to the latter power; that under such a
construction 5 States might continue a war which it required
nine to commence, though where the object of the war
has been obtained, a continuance must in every view be
equipollent to a commencement of it; and that the very
means provided for preserving a state of peace might
thus become the means of preventing its restoration.”
The answer to these arguments has been that the
construction of the federal articles which they maintain is a
nicety which reason disclaims, and that if it be dangerous
on one side to leave it in the breast of 5 States to protract a
war, it is equally necessary on the other to restrain 7 States
from saddling the Union with any stipulations which
they may please to interweave with a Treaty of peace.8
On 9 January 1785 Madison in a letter to Jefferson wrote this
about George Washington who was working on better water routes:
The earnestness with which he espouses the undertaking
is hardly to be described, and shows that a mind like his,
capable of great views & which has long been occupied
with them, cannot bear a vacancy; and surely he could
not have chosen an occupation more worthy of succeeding
to that of establishing the political rights of his Country,
than the patronage of works for the extensive & lasting
improvement of its natural advantages; works which will
double the value of half the lands within the Commonwealth,
will extend its commerce, link with its interests those of
the Western States, and lessen the emigration of its Citizens,
by enhancing the profitableness of situations which
they now desert in search of better.9
On 22 January 1785 Madison’s friend Thomas Jefferson helped him
get elected to the American Philosophical Society along with Thomas Paine,
Richard Price, Joseph Priestley, and his friend William Bradford.
Madison in a letter to the Marquis de La Fayette on 20 March 1785 wrote,
Nature has given the use of the Mississippi
to those who may settle on its waters, as she
gave to the United States their independence.
The impolicy of Spain may retard the former
as that of Great Britain did the latter.
But as Great Britain could not defeat the latter,
neither will Spain the former.
Nature seems on all sides to be reasserting those rights
which have so long been trampled on by tyranny & bigotry.
Philosophy & Commerce are the auxiliaries
to whom she is indebted for her triumphs.
Will it be presumptuous to say that those nations will show
most wisdom as well as acquire most glory, who, instead
of forcing her current into artificial channels, endeavor
to ascertain its tendency & to anticipate its effects.
If the United States were to become parties
to the occlusion of the Mississippi they would be
guilty of treason against the very laws under which
they obtained & hold their national existence.10
Then Madison warned that a quarrel over the Mississippi River
between the United States and Spain would only benefit Britain.
On 7 August 1785 Madison in a letter to James Monroe
wrote this about the government’s right to regulate trade:
Viewing in the abstract the question whether the power of
regulating trade, to a certain degree at least, ought to be
vested in Congress, it appears to me not to admit of a
doubt, but that it should be decided in the affirmative.
If it be necessary to regulate trade at all, it surely is
necessary to lodge the power, where trade can be
regulated with effect, and experience has confirmed
what reason foresaw, that it can never be so regulated
by the States acting in their separate capacities.
They can no more exercise this power separately,
than they could separately carry on war,
or separately form treaties of alliance or Commerce.
The nature of the thing therefore proves the former power,
no less than the latter, to be within the reason
of the federal Constitution.
Much indeed is it to be wished, as I conceive,
that no regulations of trade, that is to say,
no restrictions or imposts whatever, were necessary.
A perfect freedom is the System which would be my choice.
But before such a system will be eligible perhaps
for the U. S., they must be out of debt before it will
be attainable, all other nations must concur in it.
While any one of these imposes on our Vessels, seamen &c
in their ports, clogs from which they exempt their own,
we must either retort the distinction, or renounce
not merely a just profit, but our only defense against
the danger which may most easily beset us.
Are we not at this moment under this very alternative?
The policy of Great Britain (to say nothing of other nations)
has shut against us the channels without which our trade
with her must be a losing one; and she has consequently
the triumph, as we have the chagrin, of seeing
accomplished her prophetic threats, that our independence,
should forfeit commercial advantages for which it would
not recompense us with any new channels of trade.
What is to be done?
Must we remain passive victims to foreign politics;
or shall we exert the lawful means which our independence
has put into our hands, of extorting redress?
The very question would be an affront
to every Citizen who loves his Country.
What then are those means?
Retaliating regulations of trade only.
How are these to be effectuated?
only by harmony in the measures of the States.
How is this harmony to be obtained?
only by an acquiescence of all the States
in the opinion of a reasonable majority.
If Congress as they are now constituted, cannot be trusted
with the power of digesting and enforcing this opinion,
let them be otherwise constituted: let their numbers
be increased, let them be chosen oftener, and let their
period of service be shortened; or if any better medium than
Congress can be proposed, by which the wills of the States
may be concentered, let it be substituted; or lastly let no
regulation of trade adopted by Congress be in force until it
shall have been ratified by a certain proportion of the States.
But let us not sacrifice the end to the means: let us not
rush on certain ruin in order to avoid a possible danger.
I conceive it to be of great importance that the
defects of the federal system should be amended,
not only because such amendments will make it
better answer the purpose for which it was instituted,
but because I apprehend danger to its very existence
from a continuance of defects which expose a part
if not the whole of the empire to severe distress.
The suffering part, even when the minor part,
cannot long respect a Government which is too feeble to
protect their interest; but when the suffering part comes to
be the major part, and they despair of seeing a protecting
energy given to the General Government, from what
motives are their allegiance to be any longer expected?
Should Great Britain persist in the machinations
which distress us; and seven or eight of the States
be hindered by the others from obtaining relief by
federal means, I own, I tremble at the anti-federal
expedients into which the former may be tempted.
As to the objection against entrusting Congress
with a power over trade, drawn from the diversity
of interests in the States, it may be answered.
1. that if this objection had been listened to,
no confederation could have ever
taken place among the States,
2. that if it ought now to be listened to, the power held
by Congress of forming Commercial treaties by which
9 States may indirectly dispose of the Commerce
of the residue, ought to be immediately revoked.
3. that the fact is that a case can scarcely be
imagined in which it would be the interest of any 2/3rds
of the States to oppress the remaining 1/3rd.
4. that the true question is whether the commercial interests
of the States do not meet in more points than they differ.
To me it is clear that they do: and if they do,
there are so many more reasons for, than against,
submitting the commercial interest of each State
to the direction and care of the Majority.
Put the West India trade alone, in which the interest
of every State is involved, into the scale against
all the inequalities which may result from any
probable regulation by nine States, and who
will say that the latter ought to preponderate?
I have heard the different interest which the Eastern States
have as Carriers pointed out as a ground of caution to the
Southern States who have no bottoms of their own against
their concurring hastily in retaliations on Great Britain.
But will the present system of Great Britain ever
give the Southern States bottoms: and if they
are not their own Carriers, I should suppose it
no mark either of folly or incivility to give our custom
to our brethren rather than to those who have not yet
entitled themselves to the name of friends.11
This letter indicates Madison’s animosity toward the British
that would later bring about another war.
On 23 August 1785 Madison in a letter to Caleb Wallace
described his ideas for the constitution of a new government
with the three branches advised by Montesquieu.
1. The Legislative department ought by all means,
as I think to include a Senate constituted on such principles
as will give wisdom and steadiness to legislation.
The want of these qualities is the grievance
complained of in all our republics.
The want of fidelity in the administration of power
having been the grievance felt under most Governments,
and by the American States themselves
under the British Government.
It was natural for them to give too exclusive
an attention to this primary attribute.
The Senate of Maryland with
a few amendments is a good model.
Trial has I am told verified the expectations from it.
A Similar one made a part of our constitution
as it was originally proposed but the inexperience
& jealousy of our then Councils, rejected it in favor
of our present Senate; a worse could hardly have
been substituted, & yet bad as it is, it is often a
useful bit in the mouth of the house of Delegates.
Not a single Session passes without instances of sudden
resolutions by the latter of which they repent in time to
intercede privately with the Senate for their Negative.
For the other branch models enough may be found.
Care ought however to be taken against its becoming too
numerous, by fixing the number which it is never to exceed.
The quorum, wages, and privileges
of both branches ought also to be fixed.
A majority seems to be the natural quorum.
The wages of the members may be made
payable for ? years to come in the medium
value of wheat, for ? years preceding as the same
shall from period to period be rated by a respectable
Jury appointed for that purpose by the Supreme Court.
The privileges of the members ought not in my opinion to
extend beyond an exemption of their persons and equipage
from arrests during the time of their actual Service.
If it were possible, it would be well to define the extent
of the Legislative power; but the nature of it seems
in many respects to be indefinite.
It is very practicable however
to enumerate the essential exceptions.
The Constitution may expressly restrain them from meddling
with religion—from abolishing Juries from taking away
the Habeus corpus—from forcing a citizen to give
evidence against himself, from controlling the press,
from enacting retrospective laws at least in criminal cases,
from abridging the right of suffrage, from seizing
private property for public use without paying
its full Value from licensing the importation of Slaves,
from infringing the Confederation &c &c.
As a further security against fluctuating &
indigested laws, the Constitution of New York
has provided a Council of Revision.
I approve much of such an institution & believe
it is considered by the most intelligent citizens
of that state as a valuable safeguard both
to public interests & to private rights.
Another provision has been suggested
for preserving System in Legislative proceedings
which to some may appear still better.
It is that a standing committee composed of a few
select & skillful individuals should be appointed
to prepare bills on all subjects which they may judge
proper to be submitted to the Legislature at their
meetings & to draw bills for them during their Sessions.
As an antidote both to the jealousy & danger
of their acquiring an improper influence,
they might be made incapable of holding any
other Office Legislative, Executive, or Judiciary.
I like this Suggestion so much, that I have had
thoughts of proposing it to our Assembly,
who give almost as many proofs as they
pass laws of their need of some such Assistance.
2. The Executive Department Though it claims the 2nd
place is not in my estimation entitled to it by its
importance all the great powers which are properly
executive being transferred to the Federal Government.
I have made up no final opinion whether the first Magistrate
should be chosen by the Legislature or the people at large
or whether the power should be vested in one man
assisted by a council or in a council of which
the President shall be only primus inter pares.
There are examples of each in the United States and
probably advantages & disadvantages attending each.
It is material I think that the number of members
should be small & that their Salaries should be either
unalterable by the Legislature or alterable only in
such manner as will not affect any individual in place.
Our Executive is the worst part of a bad Constitution.
The Members of it are dependent on the Legislature
not only for their wages but for their reputation and
therefore are not likely to withstand usurpations
of that branch; they are besides too numerous
and expensive, their organization vague & perplexed
& to crown the absurdity some of the members may
without any new appointment continue in Office for life
contrary to one of Articles of the Declaration of Rights.
3. The Judiciary Department merits every care.
Its efficacy is Demonstrated in Great Britain where
it maintains private Right against all the corruptions
of the two other departments & gives a reputation to
the whole Government which it is not in itself entitled to.
The main points to be attended to are
1. that the Judges should hold their places
during good behavior.
2. that their Salaries should be either fixed
like the wages of the Representatives or
not be alterable so as to affect the Individuals in Office.
3. that their Salaries be liberal.
The first point is obvious: without the second the
independence aimed at by the first will be Ideal only:
without the 3rd the bar will be superior to the bench
which destroys all security for a Systematic
administration of Justice.
After securing these essential points I should think
it unadvisable to descend so far into detail
as to bar any future Modification of this department
which experience may recommend.
An enumeration of the principal courts with power
to the Legislature to Institute inferior Courts may suffice.
The Admiralty business can never be extensive in your
situation and may be referred to one of the other Courts.
With regard to a Court of Chancery as distinct
from a Court of Law, the reasons of Lord Bacon
on the affirmative side outweigh in my Judgment
those of Lord Kaims on the other side.
Yet I should think it best to leave this important question
to be decided by future lights without tying the hands
of the Legislature one way or the other.
I consider our county courts as on a bad footing and would
never myself consent to copy them into another constitution.
All the States seem to have seen the necessity of
providing for Impeachments but none of them
to have hit on an unexceptionable Tribunal.
In some the trial is referred to the Senate, in others
to the Executive, in others to the Judiciary department.
It has been suggested that a tribunal composed of
members from each Department would be better
than either, and I entirely concur in their opinion.12
Madison in Richmond wrote to George Washington on 9 December 1785.
Your favor of the 30 November
was received a few days ago.
This would have followed much earlier the one which yours
acknowledges had I not wished it to contain some final
information relative to the commercial propositions.
The discussion of them has consumed much time,
and though the absolute necessity of some such general
system prevailed over all the efforts of its adversaries
in the first instance, the stratagem of limiting its duration
to a short term has ultimately disappointed our hopes.
I think it better to trust to further experience and even
distress for an adequate remedy than to try a temporary
measure which may stand in the way of a permanent one,
and must confirm that transatlantic policy which is founded
on our supposed distrust of Congress and of one another.
Those whose opposition in this case did not spring from
illiberal animosities towards the Northern States, seem to
have been frightened on one side at the idea of a perpetual
& irrevocable grant of power, and on the other flattered with
a hope that a temporary grant might be renewed from time
to time, if its utility should be confirmed by the experiment.
But we have already granted perpetual & irrevocable
powers of a much more extensive nature than
those now proposed and for reasons not stronger
than the reasons which urge the latter.
And as to the hope of renewal, it is the most
visionary one that perhaps ever deluded men of sense.
Nothing but the peculiarity of our circumstances
could ever have produced those sacrifices of
sovereignty on which the federal Government now rests.
If they had been temporary, and the expiration
of the term required a renewal at this crisis,
pressing as the crisis is, and recent as is our
experience of the value of the confederacy,
sure I am that it would be impossible to revive it.
What room have we then to hope that the
expiration of temporary grants of commercial
powers would always find a unanimous disposition
in the States to follow their own example.
It ought to be remembered too that besides the caprice,
jealousy, and diversity of situations, which will be certain
obstacles in our way, the policy of foreign nations may
hereafter imitate that of the Macedonian Prince who effected
his purposes against the Grecian confederacy by gaining
over a few of the leading men in the smaller members of it.
Add to the whole, that the difficulty now found in obtaining
a unanimous concurrence of the States in any measure
whatever, must continually increase with every increase
of their number and perhaps in a greater ratio,
as the Ultramontane States may either have
or suppose they have a less similitude of interests
to the Atlantic States than these have to one another.
The propositions however have not yet received
the final vote of the House, having lain on the table
for some time as a report from the Committee of the whole.
The question was suspended in order to consider a
proposition which had for its object a Meeting of
Politico-Commercial Commissioners from all the States
for the purpose of digesting and reporting the requisite
augmentation of the power of Congress over trade.
What the event will be cannot be foreseen.
The friends to the original propositions are I am told
rather increasing, but I despair of a majority in any
event for a longer term than 25 years for their duration.
The other scheme will have fewer enemies
and may perhaps be carried.
It seems naturally to grow out of the proposed
appointment of Commissioners for Virginia & Maryland
concerted at Mount Vernon for keeping up harmony
in the commercial regulations of the two States.
Maryland has ratified the Report but has invited
into the plan Delaware & Pennsylvania who will naturally
pay the same compliment to their neighbors &c. &c.
Besides these general propositions on the subject of trade,
it has been proposed that some intermediate measures
should be taken by ourselves, and a sort of navigation
act will I am apprehensive be attempted.
It is backed by the mercantile interests of most
of our towns except Alexandria which alone
seems to have liberality or light on the subject.
It has refused even to suspend the measure
on the concurrence of Maryland or North Carolina.
This folly however cannot one would think, brave the
ruin which it threatens to our Merchants as well as
people at large, when a final vote comes to be given.
We have got through a great part of the Revisal,
and might by this time have been at the end of it
had the time wasted in disputing whether it could be
finished at this Session been spent in forwarding the work.
As it is, we must content ourselves with passing
a few more of the important bills, leaving the
residue for our successors of the next year.
As none of the bills passed are to be in force
till January 1787, and the residue unpassed will
probably be least disputable in their nature,
this expedient, though little eligible, is not inadmissible.
Our public credit has had a severe attack
and a narrow escape.
As a compromise it has been necessary to set forward
the half tax till March, and the whole tax of
September next till November ensuing.
The latter postponement was meant to give the planters
more time to deal with the Merchants in the sale
of their Tobacco, and is made a permanent regulation.
The Assize bill is now depending.
It has many enemies and its fate is precarious.
My hopes however prevail over my apprehensions.
The fate of the Port bill is more precarious.
The failure of an interview between our commissioners
and commissioners on the part of North Carolina
has embarrassed the projected Canal
between the Waters of the two States.
If North Carolina were entirely well disposed
the passing an Act suspended on & referred to
her legislature would be sufficient, and this course
must, I suppose be tried, though previous negotiation
would have promised more certain success.
Kentucky has made a formal application for independence.
Her memorial has been considered, and the terms
of separation fixed by a Committee of the whole.
The substance of them is that all private rights & interests
derived from the laws of Virginia shall be secured that the
unlocated lands shall be applied to the objects to which the
laws of Virginia have appropriated them—that nonresidents
shall be subjected to no higher taxes than residents—
that the Ohio shall be a common highway for Citizens
of the U.S., and the jurisdiction of Kentucky & Virginia
as far as the remaining territory of the latter will lie thereon,
be concurrent only with the new States on the opposite
Shore—that the proposed State shall take its due share of
our State debts—and that the separation shall not take place
unless these terms shall be approved by a Convention to be
held to decide the question, nor until Congress shall assent
thereto, and fix the terms of their admission into the Union.
The limits of the proposed State are to be the same
with present limits of the district.
The apparent coolness of the Representatives
of Kentucky as to a separation since these terms
have been defined indicates that they had some views
which will not be favored by them.
They disliked much to be hung up on the will of Congress.13
About 20 June 1785 Madison gave another
long speech in the Assembly on religious liberty.
He and others opposed a bill for the government to finance Christian teachers.
County sheriffs would collect taxes, and each taxpayer
could choose to which church the money would go.
This is Madison’s introduction that was followed
by a discussion of 15 reasons backing it up:
We the subscribers, citizens of the said Commonwealth,
having taken into serious consideration, a Bill printed
by order of the last Session of General Assembly,
entitled “A Bill establishing a provision for Teachers
of the Christian Religion,” and conceiving that
the same if finally armed with the sanctions of a law,
will be a dangerous abuse of power,
are bound as faithful members of a free State
to remonstrate against it, and to declare
the reasons by which we are determined.
We remonstrate against the said Bill.
1. Because we hold it for a fundamental and undeniable
truth, “that Religion or the duty which we owe to our Creator
and the manner of discharging it, can be directed only
by reason and conviction, not by force or violence.”
The Religion then of every man must be left to the
conviction and conscience of every man; and it is the
right of every man to exercise it as these may dictate.
This right is in its nature an unalienable right.
It is unalienable, because the opinions of men,
depending only on the evidence contemplated by
their own minds cannot follow the dictates of other men:
It is unalienable also because what is here a right
towards men is a duty towards the Creator.
It is the duty of every man to render to the Creator
such homage and such only as he believes
to be acceptable to him.
This duty is precedent, both in order of time and
in degree of obligation, to the claims of Civil Society.
Before any man can be considered as a member
of Civil Society, he must be considered as a
subject of the Governor of the Universe:
And if a member of Civil Society, who enters into any
subordinate Association, must always do it with a
reservation of his duty to the General Authority;
much more must every man who becomes a member
of any particular Civil Society, do it with a saving
of his allegiance to the Universal Sovereign.
We maintain therefore that in matters of Religion,
no man’s right is abridged by the institution of Civil Society
and that Religion is wholly exempt from its cognizance.
True it is, that no other rule exists, by which any question
which may divide a Society, can be ultimately determined,
but the will of the majority; but it is also true that
the majority may trespass on the rights of the minority.
2. Because if Religion be exempt from the authority
of the Society at large, still less can it be subject
to that of the Legislative Body.
The latter are but the creatures
and vicegerents of the former.
Their jurisdiction is both derivative and limited:
it is limited with regard to the co-ordinate departments,
more necessarily is it limited with regard to the constituents.
The preservation of a free Government requires not merely,
that the metes and bounds which separate each department
of power be invariably maintained; but more especially
that neither of them be suffered to overleap the
great Barrier which defends the rights of the people.
The Rulers who are guilty of such an encroachment,
exceed the commission from which they derive
their authority, and are Tyrants.
The People who submit to it are governed by laws
made neither by themselves nor by an authority
derived from them, and are slaves.
3. Because it is proper to take alarm
at the first experiment on our liberties.
We hold this prudent jealousy to be the first duty of Citizens,
and one of the noblest characteristics of the late Revolution.
The free men of America did not wait till
usurped power had strengthened itself by exercise
and entangled the question in precedents.
They saw all the consequences in the principle, and
they avoided the consequences by denying the principle.
We revere this lesson too much soon to forget it.
Who does not see that the same authority which can
establish Christianity, in exclusion of all other Religions,
may establish with the same ease any particular sect
of Christians, in exclusion of all other Sects?
That the same authority which can force a citizen to
contribute three pence only of his property for the support
of any one establishment, may force him to conform
to any other establishment in all cases whatsoever?
4. Because the Bill violates that equality which
ought to be the basis of every law, and which is
more indispensable, in proportion as the validity or
expediency of any law is more liable to be impeached.
If “all men are by nature equally free and independent,”
all men are to be considered as entering into Society on
equal conditions; as relinquishing no more, and therefore
retaining no less, one than another, of their natural rights.
Above all are they to be considered as retaining an
“equal title to the free exercise of Religion
according to the dictates of Conscience.”
While we assert for ourselves a freedom to embrace,
to profess and to observe the Religion which
we believe to be of divine origin, we cannot deny
an equal freedom to those whose minds have not yet
yielded to the evidence which has convinced us.
If this freedom be abused,
it is an offence against God, not against man:
To God, therefore, not to man,
must an account of it be rendered.
As the Bill violates equality by subjecting some
to peculiar burdens, so it violates the same principle,
by granting to others peculiar exemptions.
Are the Quakers and Mennonites the only sects
who think a compulsive support of their Religions
unnecessary and unwarrantable?
Can their piety alone be entrusted
with the care of public worship?
Ought their Religions to be endowed above all others
with extraordinary privileges by which
proselytes may be enticed from all others?
We think too favorably of the justice and
good sense of these denominations to believe
that they either covet pre-eminences over their
fellow citizens or that they will be seduced by them
from the common opposition to the measure.
5. Because the Bill implies either that the Civil Magistrate
is a competent Judge of Religious Truth; or that he
may employ Religion as an engine of Civil policy.
The first is an arrogant pretension falsified
by the contradictory opinions of Rulers in all ages
and throughout the world: the second an
unhallowed perversion of the means of salvation.
6. Because the establishment proposed by the Bill
is not requisite for the support of the Christian Religion.
To say that it is, is a contradiction to the Christian Religion
itself, for every page of it disavows a dependence on
the powers of this world: it is a contradiction to fact;
for it is known that this Religion both existed and flourished,
not only without the support of human laws, but in spite of
every opposition from them, and not only during the period
of miraculous aid, but long after it had been left to
its own evidence and the ordinary care of Providence.
Nay, it is a contradiction in terms;
for a Religion not invented by human policy,
must have pre-existed and been supported,
before it was established by human policy.
It is moreover to weaken in those who profess
this Religion a pious confidence in its innate excellence
and the patronage of its Author;
and to foster in those who still reject it,
a suspicion that its friends are too conscious
of its fallacies to trust it to its own merits.
7. Because experience witnesses that ecclesiastical
establishments, instead of maintaining the purity and
efficacy of Religion, have had a contrary operation.
During almost fifteen centuries has
the legal establishment of Christianity been on trial.
What have been its fruits?
More or less in all places, pride and indolence in the Clergy,
ignorance and servility in the laity,
in both, superstition, bigotry and persecution.
Inquire of the Teachers of Christianity for the ages in which
it appeared in its greatest lustre; those of every sect,
point to the ages prior to its incorporation with Civil policy.
Propose a restoration of this primitive State in which its
Teachers depended on the voluntary rewards of their flocks,
many of them predict its downfall.
On which Side ought their testimony to have
greatest weight, when for or when against their interest?
8. Because the establishment in question is
not necessary for the support of Civil Government.
If it be urged as necessary for the support of Civil
Government only as it is a means of supporting Religion,
and it be not necessary for the latter purpose,
it cannot be necessary for the former.
If Religion be not within the cognizance of Civil Government
how can its legal establishment
be necessary to Civil Government?
What influence in fact have ecclesiastical
establishments had on Civil Society?
In some instances they have been seen to erect
a spiritual tyranny on the ruins of the Civil authority;
in many instances they have been seen upholding
the thrones of political tyranny: in no instance have they
been seen the guardians of the liberties of the people.
Rulers, who wished to subvert the public liberty, may
have found an established Clergy convenient auxiliaries.
A just Government instituted to secure
& perpetuate it needs them not.
Such a Government will be best supported by protecting
every Citizen in the enjoyment of his Religion with the same
equal hand which protects his person and his property;
by neither invading the equal rights of any Sect,
nor suffering any Sect to invade those of another.
9. Because the proposed establishment is a
departure from that generous policy, which,
offering an Asylum to the persecuted and oppressed
of every Nation and Religion, promised a lustre to our
country and an accession to the number of its citizens.
What a melancholy mark is the Bill of sudden degeneracy?
Instead of holding forth an Asylum to the persecuted,
it is itself a signal of persecution.
It degrades from the equal rank of Citizens
all those whose opinions in Religion
do not bend to those of the Legislative authority.
Distant as it may be in its present form from the Inquisition,
it differs from it only in degree.
The one is the first step,
the other the last in the career of intolerance.
The magnanimous sufferer under this cruel scourge
in foreign Regions, must view the Bill as a Beacon
on our Coast, warning him to seek some other haven,
where liberty and philanthropy in their due extent,
may offer a more certain repose from his Troubles.
10. Because it will have a like tendency
to banish our Citizens.
The allurements presented by other situations
are every day thinning their number.
To super-add a fresh motive to emigration by
revoking the liberty which they now enjoy,
would be the same species of folly which
has dishonored and depopulated flourishing kingdoms.
11. Because it will destroy that moderation and harmony
which the forbearance of our laws to intermeddle
with Religion has produced among its several sects.
Torrents of blood have been spilt in the old world by vain
attempts of the secular arm to extinguish Religious discord
by proscribing all difference in Religious opinion.
Time has at length revealed the true remedy.
Every relaxation of narrow and rigorous policy, wherever
it has been tried, has been found to assuage the disease.
The American Theatre has exhibited proofs that equal
and complete liberty, if it does not wholly eradicate it,
sufficiently destroys its malignant influence
on the health and prosperity of the State.
If with the salutary effects of this system under our own
eyes, we begin to contract the bounds of Religious freedom,
we know no name that will too severely reproach our folly.
At least let warning be taken
at the first fruits of the threatened innovation.
The very appearance of the Bill has transformed
“that Christian forbearance, love and charity,”
which of late mutually prevailed, into animosities
and jealousies, which may not soon be appeased.
What mischiefs may not be dreaded, should this enemy
to the public quiet be armed with the force of a law?
12. Because the policy of the Bill is adverse
to the diffusion of the light of Christianity.
The first wish of those who enjoy this precious gift ought to
be that it may be imparted to the whole race of mankind.
Compare the number of those who have as yet received it
with the number still remaining under the dominion
of false Religions; and how small is the former!
Does the policy of the Bill tend to lessen the disproportion?
No; it at once discourages those who are strangers to
the light of revelation from coming into the Region of it;
and countenances by example the nations who continue in
darkness in shutting out those who might convey it to them.
Instead of Levelling, as far as possible, every obstacle
to the victorious progress of Truth, the Bill with
an ignoble and unchristian timidity would circumscribe it
with a wall of defense against the encroachments of error.
13. Because attempts to enforce by legal sanctions
acts obnoxious to so great a proportion of Citizens,
tend to enervate the laws in general,
and to slacken the bands of Society.
If it be difficult to execute any law which is not generally
deemed necessary or salutary, what must be the case,
where it is deemed invalid and dangerous?
And what may be the effect of so striking an example of
impotency in the Government on its general authority?
14. Because a measure of such singular magnitude
and delicacy ought not to be imposed, without the
clearest evidence that it is called for by a majority
of citizens, and no satisfactory method is yet proposed
by which the voice of the majority in this case
may be determined, or its influence secured.
“The people of the respective counties are indeed
requested to signify their opinion respecting the
adoption of the Bill to the next Session of Assembly.”
But the representation must be made equal,
before the voice either of the Representatives
or of the Counties will be that of the people.
Our hope is that neither of the former will after due
consideration espouse the dangerous principle of the Bill.
Should the event disappoint us, it will still leave us
in full confidence, that a fair appeal to the latter
will reverse the sentence against our liberties.
15. Because finally, “the equal right of every citizen
to the free exercise of his Religion according to
the dictates of conscience” is held by
the same tenure with all our other rights.
If we recur to its origin, it is equally the gift of nature;
if we weigh its importance, it cannot be less dear to us;
if we consult the “Declaration of those rights which
pertain to the good people of Virginia, as the basis
and foundation of Government,” it is enumerated
with equal solemnity, or rather studied emphasis.
Either then, we must say that the Will of the Legislature
is the only measure of their authority;
and that in the plenitude of this authority, they may
sweep away all our fundamental rights; or, that they are
bound to leave this particular right untouched and sacred:
Either we must say that they may control the freedom
of the press, may abolish the Trial by Jury, may swallow
up the Executive and Judiciary Powers of the State;
nay that they may despoil us of our very right of suffrage,
and erect themselves into an independent and hereditary
Assembly, or we must say that they have no authority
to enact into law the Bill under consideration.
We the Subscribers say that the General Assembly
of this Commonwealth have no such authority:
And that no effort may be omitted on our part against so
dangerous a usurpation, we oppose to it, this remonstrance;
earnestly praying, as we are in duty bound, that the
Supreme Lawgiver of the Universe, by illuminating those
to whom it is addressed, may on the one hand,
turn their Councils from every act which would affront his
holy prerogative, or violate the trust committed to them:
and on the other, guide them into every measure which may
be worthy of his blessing, may redound to their own praise,
and may establish more firmly the liberties, the prosperity
and the happiness of the Commonwealth.14
George Mason had hundreds of copies of the “Remonstrance”
printed in Alexandria and circulated them in the state.
While Jefferson was in France for five years, Madison persuaded
the Assembly to approve Jefferson’s “Bill for Establishing Religious Freedom.”
Madison wrote a lengthy letter to Jefferson on 20 August 1785,
and in another letter to Jefferson on 22 January 1786 Madison wrote that
he was proud that the “Bill for Establishing Religious Freedom” was enacted.
In a letter on 18 March 1786 Madison wrote in a letter to Jefferson:
Another unhappy effect of a continuance of the present
anarchy of our commerce will be a continuance
of the unfavorable balance on it, which by
draining us of our metals furnishes pretexts
for the pernicious substitution of paper money,
for indulgences to debtors, for postponements of taxes.
In fact most of our political evils may be traced up to our
commercial ones, as most of our moral may to our political.
The lessons which the mercantile interest of Europe have
received from late experience will probably check their
propensity to credit us beyond our resources, and so far
the evil of an unfavorable balance will correct itself.
But the Merchants of Great Britain if no others will
continue to credit us at least as far as our remittances
can be obtained, and that is far enough to perpetuate
our difficulties unless the luxurious propensity of
our own people can be otherwise checked.15
On June 19 Madison wrote about human equality to Jefferson:
Your reflections on the idle poor of Europe form
a valuable lesson to the Legislators of every Country,
and particularly of a new one.
I hope you will enable yourself before you return
to America to compare with this description of
people in France the Condition of the indigent
part of other communities in Europe where the
like causes of wretchedness exist in a less degree.
I have no doubt that the misery of the lower classes
will be found to abate wherever the Government assumes
a freer aspect, & the laws favor a subdivision of property.
Yet I suspect that the difference will not fully account
for the comparative comfort of the Mass
of people in the United States.
Our limited population has probably as large
a share in producing this effect as
the political advantages which distinguish us.
A certain degree of misery seems inseparable
from a high degree of populousness.
If the lands in Europe which are now dedicated to the
amusement of the idle rich, were parceled out among the
idle poor, I readily conceive the happy revolution which
would be experienced by a certain proportion of the latter.
But still would there not remain
a great proportion unrelieved?
No problem in political economy has appeared to me
more puzzling than that which relates to the most proper
distribution of the inhabitants of a Country fully peopled.
Let the lands be shared among them ever so wisely,
& let them be supplied with laborers ever so plentifully;
as there must be a great surplus of subsistence,
there will also remain a great surplus of inhabitants,
a greater by far than will be employed in clothing both
themselves & those who feed them, and in administering
to both, every other necessary & even comfort of life.
What is to be done with this surplus?
Hitherto we have seen them distributed into Manufacturers
of superfluities, idle proprietors of productive funds,
domestics, soldiers, merchants, mariners,
and a few other less numerous classes.
All these classes notwithstanding have been found
insufficient to absorb the redundant members
of a populous society; and yet a reduction of
most of those classes enters into the very reform
which appears so necessary & desirable.
From a more equal partition of property, must result
a greater simplicity of manners, consequently a less
consumption of manufactured superfluities,
and a less proportion of idle proprietors & domestics.
From a juster Government must result less need
of soldiers either for defense against dangers
from without or disturbances from within.
The number of merchants must be inconsiderable
under any modification of Society; and that
of Mariners will depend more on geographical position,
than on the plan of legislation.
But I forget that I am writing a letter not a dissertation.16On 21 June 1786 Madison in a letter to James Monroe wrote,
Again can there be a more shortsighted or dishonorable
policy than to concur with Spain in frustrating the benevolent
views of nature—to sell the affections of our ultramontane
brethren to depreciate the richest fund we possess to
distrust an ally whom we know to be able to befriend us
and to have an interest in doing it against the only nation
whose enmity we can dread, and at the same time to court
by the most precious sacrifices the alliance of a nation
whose impotency is notorious, who has given no proof
of regard for us and the genius of whose government
religion & manners unfit them, of all the nations
in Christendom for a coalition with this country.
Can anything too, as you well observe, be more unequal
than a stipulation which is to open all our ports to her
and some only and those the least valuable of hers to us;
and which places the commercial freedom of our ports
against the fettered regulations of those in Spain.
I always thought the stipulations with France and Holland
of the privileges of the most favored nation as unequal
and only to be justified by the influence which the
treaties could not fail to have on the event of the war.
A stipulation putting Spanish subjects on the same footing
with our own citizens is carrying the evil still farther
without the same pretext for it; and is the more to be
dreaded, as by making her the most favored nation it would
let in the other nations with whom we are now connected
to the same privileges, whenever they may find it their
interest to make the same compensation for them while
we have not a reciprocal right to force them into such
an arrangement in case our interest should dictate it.
A guarantee is if possible still more objectionable.
If it be insidious, we plunge ourselves into infamy.
If sincere, into obligations the extent of which
cannot easily be determined.
In either case we get farther into the labyrinth of
European politics from which we ought religiously
to keep ourselves as free as possible.
And what is to be gained by such a rash step?
Will any man in his senses pretend that our territory
needs such a safeguard, or that if it were in danger,
it is the arm of Spain that is to save it.
Viewing the matter in this light I cannot but flatter myself,
that if the attempt you apprehend should be made,
it will be rejected with becoming indignation.
I am less sanguine as to the issue of the
other matter contained in your letter.
I know the mutual prejudices which impede every overture
towards a just & final settlement of claims & accounts.
I persist in the opinion that a proper & speedy adjustment is
unattainable from any Assembly constituted as Congress is,
and acting under the impulse which they must.
I need not repeat to you the plan which has always
appeared to me most likely to answer the purpose.
In the meantime, it is mortifying to see the other
States or rather their Representatives, pursuing
a course which will make the case more & more
difficult, & putting arms into the hands of Enemies
to every amendment of our federal System.
God knows that they are formidable enough
in this State without such an advantage.17
Madison on 12 August 1786 wrote about various concerns
in a long letter to Thomas Jefferson in France.
On 11 September 1786 Madison attended a convention on trade
at Annapolis,
Maryland that failed because only 12 delegates from five states attended.
Alexander Hamilton from New York advised that they ask Congress
to plan a convention to correct the faults of the Articles of Confederation,
and they agreed to meet on the second Monday of May 1787 at Philadelphia.
Madison in a letter to James Monroe on 5 October 1786 wrote,
The progression which a certain measure seems to be
making is an alarming proof of the predominance of
temporary and partial interests over those just &
extended maxims of policy which have been so much
boasted of among us and which alone can effectuate
the durable prosperity of the Union.
Should the measure triumph under the patronage
of 9 States or even of the whole thirteen,
I shall never be convinced that it is expedient,
because I cannot conceive it to be just.
There is no maxim in my opinion which is more liable
to be misapplied, and which therefore more needs
elucidation than the current one that the interest of the
majority is the political standard of right and wrong.
Taking the word “interest” as synonymous with “Ultimate
happiness,” in which sense it is qualified with every
necessary moral ingredient, the proposition is no doubt true.
But taking it in the popular sense, as referring
to immediate augmentation of property and wealth,
nothing can be more false.
In the latter sense it would be the interest of the majority
in every community to despoil & enslave the minority
of individuals; and in a federal community to make a
similar sacrifice of the minority of the component States.
In fact it is only reestablishing under another name and a
more specious form, force as the measure of right; and in
this light the Western settlements will infallibly view it.18
On 5 November 1786 George Washington
wrote this letter to James Madison:
I thank you for the communications
in your letter of the first inst.
The decision of the House on the question
respecting a paper emission, is portentous I hope,
of an auspicious Session.
It may certainly be classed among the important
questions of the present day and merited
the serious consideration of the Assembly.
Fain would I hope, that the great, & most important
of all objects—the federal government—may be
considered with that calm & deliberate attention which the
magnitude of it so loudly calls for at this critical moment:
Let prejudices, unreasonable jealousies,
and local interest yield to reason and liberality.
Let us look to our National character
and to things beyond the present period.
No morn ever dawned more favorable than ours did—
and no day was ever more clouded than the present!
Wisdom & good examples are necessary at this time to
rescue the political machine from the impending storm.
Virginia has now an opportunity to set the latter,
and has enough of the former, I hope, to take
the lead in promoting this great & arduous work.
Without some alteration in our political creed,
the superstructure we have been seven years raising
at the expense of much blood and treasure must fall.
We are fast verging to anarchy & confusion!
A letter which I have just received from General Knox,
who had just returned from Massachusetts
(whither he had been sent by Congress
consequent of the Commotion in that State)
is replete with melancholy information of the temper
& designs of a considerable part of that people.
Among other things he says, “their creed is, that the
property of the United States, has been protected from
confiscation of Britain by the joint exertions of all,
and therefore ought to be the common property of all.
And he that attempts opposition to this creed
is an enemy to equity & justice,
& ought to be swept from off the face of the Earth.”
Again “They are determined to annihilate all debts
public & private, and have Agrarian Laws, which
are easily effected by the means of unfunded paper
money which shall be a tender in all cases whatever.”
He adds, “The numbers of these people amount in
Massachusetts to about one fifth part of several populous
Counties, and to these may be collected, people of similar
sentiments from the States of Rhode Island, Connecticut,
& New Hampshire so as to constitute a body of twelve
or fifteen thousand desperate and unprincipled men.
They are chiefly of the young
& active part of the Community.”
How melancholy is the Reflection, that in so short a space,
we should have made such large strides towards fulfilling
the prediction of our transatlantic foe!
“Leave them to themselves,
and their government will soon dissolve.”
Will not the wise & good strive hard to avert this evil?
Or will their supineness suffer ignorance and the arts of
self-interested designing disaffected & desperate characters,
to involve this rising empire in wretchedness & contempt?
What stronger evidence can be given of the want
of energy in our governments than these disorders?
If there exists not a power to check them,
what security has a man of life, liberty, or property?
To you, I am sure I need not add aught on this subject,
the consequences of a lax or inefficient government
are too obvious to be dwelt on.
Thirteen sovereignties pulling against each other,
and all tugging at the federal head will soon bring ruin
on the whole; whereas a liberal, and energetic Constitution,
well guarded & closely watched to prevent encroachments,
might restore us to that degree of respectability &
consequence, to which we had a fair claim
& the brightest prospect of attaining.19
Madison responded quickly to Washington
with this letter on 8 November 1786:
I am just honored with your favor of the 5th inst.
The intelligence from General Knox is gloomy indeed,
but is less so than the colors in which
I had it through another channel.
If the lessons which it inculcates should not work
the proper impressions on the American Public,
it will be a proof that our case is desperate.
Judging from the present temper and
apparent views of our Assembly,
I have some ground for leaning to the side of Hope.
The vote against Paper money has been followed
by two others of great importance.
By one of them sundry petitions for applying a
scale of depreciation to the Military Certificates
was unanimously rejected.
By the other the expediency of complying with the
recommendation from Annapolis in favor of a general
revision of the federal System was unanimously agreed to.
A bill for the purpose is now depending and in a form
which attests the most federal spirit.
As no opposition has been yet made, and it is ready for
the third reading, I expect it will soon be before the public.
It has been thought advisable to give this subject
a very solemn dress, and all the weight
which could be derived from a single State.
This idea will also be pursued in the selection of
characters to represent Virginia in the federal Convention.
You will infer our earnestness on this point
from the liberty which will be used of placing
your name at the head of them.
How far this liberty may correspond with the ideas
by which you ought to be governed will be best
decided where it must ultimately be decided.
In every event it will assist powerfully in marking
the zeal of our Legislature, and its opinion
of the magnitude of the occasion.
Mr. Randolph has been elected successor to Mr. Henry.
He had 79 votes; Col. Bland had 28, & R. H. Lee 22.
The Delegation to Congress drops Col. H. Lee,
a circumstance which gives much pain to those
who attend to the mortification in which
it must involve a man of sensibility.
I am even yet to learn the ground of the
extensive disapprobation which has shown itself.20
On 7 December 1786 Madison in this letter to George Washington
urged him to attend the convention that was to begin in May 1787.
Notwithstanding the communications in your favor of the
18th Ult: which has remained till now to be acknowledged,
it was the opinion of every judicious friend whom I
consulted that your name could not be spared from
the Deputation to the Meeting in May in Philadelphia.
It was supposed that in the first place, the peculiarity
of the mission and its acknowledged pre-eminence over
every other public object, may possibly reconcile your
undertaking it, with the respect which is justly due &
which you wish to pay to the late officers of the army;
and in the second place that although you should find
that or any other consideration an obstacle to your
attendance on the service, the advantage of having
your name in the front of the appointment as a mark
of the earnestness of Virginia, and an invitation
to the most select characters from every part of the
Confederacy, ought at all events to be made use of.
In these sentiments I own I fully concurred
and flatter myself that they will at least apologize
for my departure from those held out in your letter.
I even flatter myself that they will merit a serious
consideration with yourself, whether the difficulties
which you enumerate ought not to give way to them.
The affair of the Mississippi which was brought
before the Assembly in a long Memorial from the
Western Members & some of the Officers,
has undergone a full consideration of both houses.
The Resolutions printed in the papers were
agreed to unanimously in the House of Delegates.
In the Senate I am told the language was
objected to by some members as too pointed.
They certainly express in substance the decided
sense of this Country at this time on the subject,
and were offered in the place of some which went much
farther and which were in other respects exceptionable.
I am entirely convinced from what I observe here,
that unless the project of Congress can be reversed,
the hopes of carrying this State into a proper
federal System will be demolished.
Many of our most federal leading men are
extremely soured with what has already passed.
Mr. Henry, who has been hitherto the Champion of the
federal cause, has become a cold advocate, and in the
event of an actual sacrifice of the Mississippi by Congress,
will unquestionably go over to the opposite side.
I have a letter from Col. Grayson of late date
which tells me that nothing further has been done
in Congress and one from Mr. Clarke of New Jersey,
which informs me that he expected every hour,
instructions from his Legislature for reversing the vote
given by the Delegates of that State in favor of the Project.
The temper of the Assembly at the beginning of the
Session augured an escape of every measure this year,
not consonant to the proper principles of Legislation.
I fear now that the conclusion
will contradict the promising outset.
In admitting Tobacco for a commutable, we perhaps
swerved a little from the line in which we set out.
I acquiesced in the measure myself, as a prudential
compliance with the clamors within doors & without, and
as a probable means of obviating more hurtful experiments.
I find however now that it either had no such tendency,
or that schemes were in embryo which I was not aware of.
A bill for establishing district Courts has been clogged
with a plan for installing all debts now due, so as
to make them payable in three annual portions.
What the fate of the experiment will be I know not.
It seems pretty certain that if it fails, the bill will fail with it.
It is urged in support of this measure that it will be
favorable to debtors & creditors both, and that without it,
the bill for accelerating Justice would ruin the former,
and endanger the public repose.
The objections are so numerous and of such a nature,
that I shall myself give up the bill
rather than pay such a price for it.
With unfeigned affection & the highest respect
I am Dear Sir Your Obedient & humble servant.21
In April 1787 James Madison wrote the memorandum on
“Vices of the Political System of the United States” to describe
the failures of the Articles of Confederation and its government.
1. Failure of the States to comply
with the Constitutional requisitions.
This evil has been so fully experienced both
during the war and since the peace, results so
naturally from the number and independent authority
of the States and has been so uniformly exemplified
in every similar Confederacy, that it may be considered
as not less radically and permanently inherent in that
it is fatal to the object of the present system.
2. Encroachments by the States on the federal authority.
Examples of this are numerous and repetitions may be
foreseen in almost every case where any favorite
object of a State shall present a temptation.
Among these examples are the wars
and treaties of Georgia with the Indians.
The unlicensed compacts between Virginia and Maryland,
and between Pennsylvania & New Jersey—
the troops raised and to be kept up by Massachusetts.
3. Violations of the law of nations and of treaties.
From the number of Legislatures, the sphere of life
from which most of their members are taken,
and the circumstances under which their
legislative business is carried on,
irregularities of this kind must frequently happen.
Accordingly not a year has passed without instances
of them in some one or other of the States.
The Treaty of peace—the treaty with France—
the treaty with Holland have each been violated.
(See the complaints to Congress on these subjects.)
The causes of these irregularities must necessarily produce
frequent violations of the law of nations in other respects.
As yet foreign powers have not been
rigorous in animadverting on us.
This moderation however cannot be mistaken
for a permanent partiality to our faults, or a
permanent security against those disputes with
other nations, which being among the greatest of
public calamities, it ought to be least in the power
of any part of the Community to bring on the whole.
4. Trespasses of the States on the rights of each other.
These are alarming symptoms, and may be daily
apprehended as we are admonished by daily experience.
See the law of Virginia restricting foreign vessels to
certain ports—of Maryland in favor of vessels belonging
to her own citizens—of New York in favor of the same.
Paper money, instalments of debts, occlusion of Courts,
making property a legal tender, may likewise be
deemed aggressions on the rights of other States.
As the Citizens of every State aggregately taken
stand more or less in the relation of Creditors or debtors,
to the Citizens of every other State, Acts of the debtor
State in favor of debtors, affect the Creditor State,
in the same manner as they do its own citizens
who are relatively creditors towards other citizens.
This remark may be extended to foreign nations.
If the exclusive regulation of the value and alloy of coin
was properly delegated to the federal authority,
the policy of it equally requires a control on
the States in the cases above mentioned.
It must have been meant
1. to preserve uniformity in the circulating
medium throughout the nation.
2. to prevent those frauds on the citizens of other States,
and the subjects of foreign powers, which might disturb the
tranquility at home or involve the Union in foreign contests.
The practice of many States in restricting the commercial
intercourse with other States, and putting their productions
and manufactures on the same footing with those of
foreign nations, though not contrary to the federal articles,
is certainly adverse to the spirit of the Union,
and tends to beget retaliating regulations,
not less expensive and vexatious in themselves
than they are destructive of the general harmony.
5. Want of concert in matters
where common interest requires it.
This defect is strongly illustrated in the state
of our commercial affairs.
How much has the national dignity, interest,
and revenue suffered from this cause?
Instances of inferior moment are the want of uniformity
in the laws concerning naturalization & literary property;
of provision for national seminaries, for grants
of incorporation for national purposes, for canals
and other works of general utility, which may
at present be defeated by the perverseness of
particular States whose concurrence is necessary.
6. Want of Guarantee to the States of their Constitutions
& laws against internal violence.
The confederation is silent on this point and therefore by
the second article the hands of the federal authority are tied.
According to Republican Theory, Right and power being
both vested in the majority, are held to be synonymous.
According to fact and experience a minority may in
an appeal to force, be an overmatch for the majority.
1. if the minority happen to include all such as
possess the skill and habits of military life,
& such as possess the great pecuniary resources,
one-third only may conquer the remaining two-thirds.
2. one-third of those who participate in the choice
of the rulers, may be rendered a majority by the
accession of those whose poverty excludes them
from a right of suffrage, and who for obvious
reasons will be more likely to join the standard
of sedition than that of the established Government.
3. where slavery exists the republican Theory
becomes still more fallacious.
7. Want of sanction to the laws,
and of coercion in the Government of the Confederacy.
A sanction is essential to the idea of law,
as coercion is to that of Government.
The federal system being destitute of both,
wants the great vital principles of a Political Constitution.
Under the form of such a constitution, it is in fact nothing
more than a treaty of amity of commerce and of alliance
between independent and Sovereign States.
8. Want of ratification by the people
of the articles of Confederation.
In some of the States the Confederation is
recognized by and forms a part of the Constitution.
In others however it has received no other sanction
than that of the legislative authority.
From this defect two evils result:
Whenever a law of a State happens to be repugnant
to an act of Congress, particularly when the latter is
of posterior date to the former, it will be at least
questionable whether the latter must not prevail;
and as the question must be decided by the
Tribunals of the State, they will be most likely
to lean on the side of the State.
As far as the union of the States is to be regarded as
a league of sovereign powers, and not as a political
Constitution by virtue of which they are become one
sovereign power, so far it seems to follow from the
doctrine of compacts, that a breach of any of the
articles of the Confederation by any of the parties to it,
absolves the other parties from their respective
obligations, and gives them a right, if they choose
to exert it, of dissolving the Union altogether.
9. Multiplicity of laws in the several States.
In developing the evils which vitiate the political system
of the U. S., it is proper to include those which are found
within the States individually, as well as those which
directly affect the States collectively, since the former
class have an indirect influence on the general malady and
must not be overlooked in forming a complete remedy.
Among the evils then of our situation may well be ranked
the multiplicity of laws from which no State is exempt.
As far as laws are necessary, to mark with precision the
duties of those who are to obey them, and to take from
those who are to administer them a discretion, which might
be abused, their number is the price of liberty.
As far as the laws exceed this limit, they are a nuisance:
a nuisance of the most pestilent kind.
Try the Codes of the several States by this test,
and what a luxuriance of legislation do they present.
The short period of independence has filled
as many pages as the century which preceded it.
Every year, almost every session, adds a new volume.
This may be the effect in part, but it can only be in part,
of the situation in which the revolution has placed us.
A review of the several codes will show that every
necessary and useful part of the least voluminous of them
might be compressed into one tenth of the compass,
and at the same time be rendered tenfold as perspicuous.
10. Mutability of the laws of the States.
This evil is intimately connected with the former
yet deserves a distinct notice, as it emphatically
denotes a vicious legislation.
We daily see laws repealed or superseded, before
any trial can have been made of their merits, and
even before a knowledge of them can have reached the
remoter districts within which they were to operate.
In the regulations of trade this instability becomes
a snare not only to our citizens but to foreigners also.
11. Injustice of the laws of the States.
If the multiplicity and mutability of laws prove a want of
wisdom, their injustice betrays a defect still more alarming:
more alarming not merely because it is a greater evil
in itself; but because it brings more into question the
fundamental principle of republican Government,
that the majority who rule in such governments are the
safest Guardians both of public Good and private rights.
To what causes is this evil to be ascribed?
These causes lie
1. in the Representative bodies.
2. in the people themselves.
1. Representative appointments are
sought from 3 motives:
1. ambition. 2. personal interest. 3. public good.
Unhappily the two first are proved
by experience to be most prevalent.
Hence the candidates who feel them, particularly,
the second, are most industrious, and most successful
in pursuing their object: and forming often a majority
in the legislative Councils, with interested views,
contrary to the interest and views of their constituents,
join in a perfidious sacrifice of the latter to the former.
A succeeding election it might be supposed, would
displace the offenders and repair the mischief.
But how easily are base and selfish measures masked
by pretexts of public good and apparent expediency?
How frequently will a repetition of the same arts and
industry which succeeded in the first instance again
prevail on the unwary to misplace their confidence?
How frequently too will the honest but unenlightened
representative be the dupe of a favorite leader,
veiling his selfish views under the professions of
public good and varnishing his sophistical arguments
with the glowing colors of popular eloquence?
2. A still more fatal if not more frequent cause,
lies among the people themselves.
All civilized societies are divided into different interests
and factions, as they happen to be creditors or debtors—
rich or poor—husbandmen, merchants or manufacturers—
members of different religious sects—followers of
different political leaders—inhabitants of different districts—
owners of different kinds of property &c &c.
In republican Government the majority however composed,
ultimately give the law.
Whenever therefore an apparent interest or
common passion unites a majority what is to
restrain them from unjust violations of the rights
and interests of the minority or of individuals?
Three motives only
1. a prudent regard to their own good as involved in
the general and permanent good of the Community.
This consideration although of decisive weight in itself,
is found by experience to be too often unheeded.
It is too often forgotten, by nations as well as
by individuals that honesty is the best policy.
2ndly respect for character.
However strong this motive may be in individuals,
it is considered as very insufficient
to restrain them from injustice.
In a multitude its efficacy is diminished in proportion
to the number which is to share the praise or the blame.
Besides, as it has reference to public opinion,
which within a particular Society, is the opinion
of the majority, the standard is fixed by those
whose conduct is to be measured by it.
The public opinion without the Society will be
little respected by the people at large of any Country.
Individuals of extended views and of national pride,
may bring the public proceedings to this standard,
but the example will never be followed by the multitude.
Is it to be imagined that an ordinary citizen or even
an assembly-man of Rhode Island in estimating the
policy of paper money ever considered or cared in what
light the measure would be viewed in France or Holland;
or even in Massachusetts or Connecticut?
It was a sufficient temptation to both that
it was for their interest: it was a sufficient sanction
to the latter that it was popular in the State;
to the former that it was so in the neighborhood.
3rdly will Religion the only remaining motive
be a sufficient restraint?
It is not pretended to be such
on men individually considered.
Will its effect be greater on them considered
in an aggregate view? quite the reverse.
The conduct of every popular assembly acting on oath,
the strongest of religious Ties, proves that individuals
join without remorse in acts, against which their
consciences would revolt if proposed to them under
the like sanction, separately in their closets.
When indeed Religion is kindled into enthusiasm,
its force like that of other passions,
is increased by the sympathy of a multitude.
But enthusiasm is only a temporary state of religion,
and while it lasts will hardly be seen
with pleasure at the helm of Government.
Besides as religion in its coolest state,
is not infallible, it may become a motive to
oppression as well as a restraint from injustice.
Place three individuals in a situation wherein the
interest of each depends on the voice of the others,
and give to two of them an interest opposed
to the rights of the third?
Will the latter be secure?
The prudence of every man would shun the danger.
The rules & forms of justice suppose & guard against it.
Will two thousand in a like situation be less likely
to encroach on the rights of one thousand?
The contrary is witnessed by the notorious factions &
oppressions which take place in corporate towns limited
as the opportunities are, and in little republics when
uncontrolled by apprehensions of external danger.
If an enlargement of the sphere is found to lessen the
insecurity of private rights, it is not because the impulse of
a common interest or passion is less predominant in this
case with the majority; but because a common interest or
passion is less apt to be felt and the requisite combinations
less easy to be formed by a great than by a small number.
The Society becomes broken into a greater variety of
interests, of pursuits of passions, which check each other,
whilst those who may feel a common sentiment have
less opportunity of communication and concert.
It may be inferred that the inconveniences of popular States
contrary to the prevailing Theory, are in proportion
not to the extent, but to the narrowness of their limits.
The great desideratum in Government is such
a modification of the sovereignty as will render it
sufficiently neutral between the different interests
and factions, to control one part of the society
from invading the rights of another, and at the
same time sufficiently controlled itself from setting
up an interest adverse to that of the whole Society.
In absolute Monarchies the prince is sufficiently
neutral towards his subjects, but frequently sacrifices
their happiness to his ambition or his avarice.
In small Republics the sovereign will is sufficiently
controlled from such a Sacrifice of the entire Society,
but is not sufficiently neutral towards the parts composing it.
As a limited monarchy tempers the evils of an absolute one;
so an extensive Republic meliorates
the administration of a small Republic.
An auxiliary desideratum for the melioration of the
Republican form is such a process of elections as will
most certainly extract from the mass of the Society
the purest and noblest characters which it contains;
such as will at once feel most strongly the proper motives
to pursue the end of their appointment, and be most
capable to devise the proper means of attaining it.22
Notes
1. From James Madison to Edmund Randolph, 22 January 1783 (Online).
2. Notes on Debates, 28 January 1783 (Online).
3. Writings by James Madison, p. 17-20.
4. Report on Address to the States by Congress, [25 April] 1783 (Online).
5. From James Madison to James Madison, Sr., 8 September 1783 (Online).
6. James Madison: The Nationalist 1780-1787 by Irving Brant, p. 335.
7. To James Madison from Thomas Jefferson, 20 February 1784 (Online).
8. From James Madison to Thomas Jefferson, 16 March 1784 (Online).
9. From James Madison to Thomas Jefferson, 9 January 1785 (Online).
10. James Madison: A Biography by Ralph Ketcham, p. 177.
11. Writings by James Madison, p. 36-39.
12. Ibid., p. 40-43.
13. Ibid., p. 47-50.
14. Ibid., p. 29-36.
15. To Thomas Jefferson from James Madison, 18 March 1786 (Online).
16. James Madison to Thomas Jefferson 19 June 1786 Papers 9:76-77 (Online).
17. From James Madison to James Monroe, 21 June 1786 (Online).
18. From James Madison to James Monroe, 5 October 1786 (Online).
19. To James Madison from George Washington, 5 November 1786 (Online).
20. From James Madison to George Washington, 8 November 1786 1786 (Online).
21. Writings by James Madison, p. 59-61.
22. Ibid., p. 69-80.