Thomas Jefferson in a letter from Paris to
Alexander Donald on 7 February 1788 wrote,
I wish with all my soul that the nine first Conventions may
accept the new Constitution, because this will secure to us
the good it contains, which I think great and important.
But I equally wish that the four latest conventions,
whichever they be, may refuse to accede to it
till a declaration of rights be annexed.
This would probably command the offer of such a
declaration, and thus give to the whole fabric, perhaps
as much perfection as any one of that kind ever had.
By a declaration of rights I mean one which shall
stipulate freedom of religion, freedom of the press, freedom
of commerce against monopolies, trial by juries in all cases,
no suspensions of the habeas corpus, no standing armies.
These are fetters against doing evil which
no honest government should decline.1
On March 3 James Madison wrote to George Washington
and reported how a New Hampshire convention was working
on ratification, and Virginia was planning one for June.
In Virginia the Anti-Federalists who opposed the new Constitution
were
led by Patrick Henry, Richard Henry Lee, James Monroe, and George Mason.
Yet on May 23 South Carolina’s ratification was the 8th,
and only one more was needed to put the Constitution into effect.
Between 6 June 1788 and June 24 Madison gave eight speeches in
Virginia’s Ratifying Convention that fill 53 pages in Writings by James Madison.
On June 6 he concluded his speech on
“Defense of the Constitution” with these words:
If the general government were wholly independent
of the governments of the particular states,
then indeed usurpation might be expected
to the fullest extent: but, sir, on whom
does this general government depend?
It derives its authority from these governments and from
the same sources from which their authority is derived.
The members of the federal government
are taken from the same men from whom
those of the state legislatures are taken.
If we consider the mode in which the federal
representatives will be chosen, we shall be convinced,
that the general will never destroy the individual
governments; and this conviction must be strengthened
by an attention to the construction of the senate.
The representatives will be chosen, probably under
the influence of the members of the state legislatures:
but there is not the least probability that the election
of the latter will be influenced by the former.
One-hundred and sixty members represent this
commonwealth in one branch of the legislature,
are drawn from the people at large,
and must ever possess more influence than the
few men who will be elected to the general legislature.
The reasons offered on this subject, by a gentleman
on the same side (Mr. Nicholas) were unanswerable,
and have been so full, that I shall add
but little more on the subject.
Those who wish to become federal representatives,
must depend on their credit with that class of men
who will be the most popular in their counties, who
generally represent the people in the state governments:
they can, therefore, never succeed in any measure
contrary to the wishes of those on whom they depend.
It is almost certain, therefore, that the deliberations
of the members of the federal house of representatives,
will be directed to the interests of the people of America.
As to the other branch, the senators will be appointed
by the legislatures, and though elected for six years,
I do not conceive they will so soon forget the source
from whence they derive their political existence.
This election of one branch of the federal
by the state legislatures secures an absolute
dependence of the former on the latter.
The biennial exclusion of one-third, will lessen the
facility of a combination and may put a stop to intrigues.
I appeal to our past experience, whether they will
attend to the interests of their constituent states.
Have not those gentlemen who have been honored
with seats in congress, often signalized themselves
by their attachment to their states?
I wish this government may answer the expectation of
its friends and foil the apprehensions of its enemies.
I hope the patriotism of the people will continue
and be a sufficient guard to their liberties.
I believe its tendency will be that the state governments
will counteract the general interest and ultimately prevail.
The number of the representatives is yet sufficient
for our safety and will gradually increase and if
we consider their different sources of information,
the number will not appear too small.2
On June 11 in his longest speech “On Direct Taxation” he said,
Let us compare the members composing the legislative,
executive and judicial powers in the general government
with those in the states, and let us take into view
the vast number of persons employed in the states;
from the chief officers to the lowest
we will find the scale preponderating so much
in favor of the states, that while so many persons
are attached to them, it will be impossible
to turn the balance against them.
There will be an irresistible bias
towards the state governments.
Consider the number of militia officers,
the number of justices of the peace,
the number of the members of the legislatures,
and all the various officers for districts,
towns and corporations, all intermixing with,
and residing among the people at large.
While this part of the community retains their
affection to the state governments, I conceive
that the fact will be, that the state governments,
and not the general government, will preponderate.
It cannot be contradicted that
they have more extensive means of influence.
I have my fears as well as the honorable gentleman—
but my fears are on the other side.
Experience, I think, will prove
(though there be no infallible proof of it here)
that the powerful and prevailing influence
of the states, will produce such attention
to local considerations as will be inconsistent
with the advancement of the interests of the union.
But I choose rather to indulge my hopes than fears,
because I flatter myself, if inconveniences
should result from it, that the clause which
provides amendments will remedy them.
The combination of powers vested in those persons,
would seem conclusive in favor of the states.
The powers of the general government relate
to external objects and are but few.
But the powers in the states relate to those great objects
which immediately concern the prosperity of the people.
Let us observe also that the powers in the
general government are those which will be
exercised mostly in time of war, while those of the
state governments will be exercised in time of peace.
But I hope the time of war will be
little compared to that of peace.
I should not complete the view which ought
to be taken of this subject without making
this additional remark that the powers vested
in the proposed government are not so much an
augmentation of powers in the general government,
as a change rendered necessary for the purpose of
giving efficacy to those which were vested in it before.
It cannot escape any gentleman that this power in theory
exists in the confederation as fully as in this Constitution.
The only difference is this, that now they tax states,
and by this plan they will tax individuals.
There is no theoretic difference between the two.
But in practice there will be
an infinite difference between them.
The one is an ineffectual power:
the other is adequate to the purpose for which it is given.
This change was necessary for the public safety.
Let us suppose for a moment that the acts of congress
requiring money from the states, had been as effectual
as the paper on the table—suppose all the laws of congress
had had complete compliance, will any gentleman say,
that as far as we can judge from past experience,
that the state governments would have been debased,
and all consolidated and incorporated in one system?
My imagination cannot reach it.
I conceive, that had those acts that effect
which all laws ought to have,
the states would have retained their sovereignty.
It seems to be supposed, that it will introduce
new expenses and burdens on the people.
I believe it is not necessary here to make a
comparison between the expenses of the
present and of the proposed government.
All agree that the general government ought
to have power for the regulation of commerce.
I will venture to say, that very great improvements
and very economical regulations will be made.
It will be a principal object to guard
against smuggling and such other attacks
on the revenue as other nations are subject to.
We are now obliged to defend against those
lawless attempts, but from the interfering regulations
of different states with little success.
There are regulations in different states which
are unfavorable to the inhabitants of other states
and which militate against the revenue.
New York levies money from New Jersey by her imposts.
In New Jersey, instead of co-operating with New York,
the legislature favors violations on her regulations.
This will not be the case
when uniform regulations will be made.
Requisitions though ineffectual are unfriendly to economy.
When requisitions are submitted to the states,
there are near 2500 or 2000 persons
deliberating on the mode of payment.
All these during their deliberation receive public pay.
A great proportion of every session in
every state is employed to consider whether
they will pay at all and in what mode.
Let us suppose 1500 persons
are deliberating on this subject.
Let anyone make a calculation—it will be found that
a very few days of their deliberation will
consume more of the public money than one year
of that of the general legislature.
This is not all, Mr. Chairman.
When general powers will be vested in the general
government, there will be less of that mutability
which is seen in the legislation of the states.
The consequence will be
a great saving of expense and time.
There is another great advantage
which I will but barely mention.
The greatest calamity to which the United States
can be subject is a vicissitude of laws and continual
shifting and changing from one object to another, which
must expose the people to various inconveniences.
This has a certain effect, of which sagacious men
always have and always will make an advantage.
From whom is advantage made?
From the industrious farmers and tradesmen, who
are ignorant of the means of making such advantages.
The people will not be exposed to these inconveniences
under a uniform and steady course of legislation.
But they have been so heretofore.
The history of taxation of this country is so fully
and well known to every member of this committee,
that I shall say no more of it.3
On June 12 Madison spoke on the issue of religion
and its relation to the bill of rights saying,
The honorable member has introduced
the subject of religion.
Religion is not guarded—there is no bill of rights
declaring that religion should be secure.
Is a bill of rights a security for religion?
Would the bill of rights in this state exempt the people
from paying for the support of one particular sect,
if such sect were exclusively established by law?
If there were a majority of one sect,
a bill of rights would be a poor protection for liberty.
Happily for the states, they enjoy
the utmost freedom of religion.
This freedom arises from that multiplicity of sects,
which pervades America, and which is the best
and only security for religious liberty in any society.
For where there is such a variety of sects, there cannot be a
majority of any one sect to oppress and persecute the rest.
Fortunately for this commonwealth, a majority of the people
are decidedly against any exclusive establishment—
I believe it to be so in the other states.
There is not a shadow of right
in the general government to intermeddle with religion.
Its least interference with it would be
a most flagrant usurpation.
I can appeal to my uniform conduct on this subject,
that I have warmly supported religious freedom.
It is better that this security should be depended upon
from the general legislature, than from one particular state.
A particular state might concur in one religious project.
But the United States abound in such a variety of sects,
that it is a strong security against religious persecution,
and is sufficient to authorize a conclusion,
that no one sect will ever be able to
out-number or depress the rest.4
Eventually the First Amendment would include the freedom of religion
and protection against any religion being established or imposed by government.
On June 17 Madison spoke to the Virginia
Ratifying Convention on “Control of the Military.”
This is the entire speech:
Mr. Chairman—I will endeavor to follow the rule
of the house; but must pay due attention to
the observations which fell from the gentleman.
I should conclude from abstracted reasoning
that they were ill founded.
I should think, that if there were any object,
which the general government ought to command,
it would be the direction of the national forces.
And as the force which lies in militia is most safe,
the direction of that part ought to be submitted to,
in order to render another force unnecessary.
The power objected to is necessary,
because it is to be employed for national purposes.
It is necessary to be given to every government.
This is not opinion, but fact.
The highest authority may be given:
That the want of such authority in the government
protracted the late war and prolonged its calamities.
He says, that one ground of complaint
at the beginning of the revolution,
was that a standing army was quartered upon us.
This was not the whole complaint.
We complained because it was done
without the local authority of this country—
without the consent of the people of America.
As to the exclusion of standing armies in the bills of rights
of the states, we shall find, that though in one or two
of them, there is something like a prohibition,
yet in most of them it is only provided that no armies
shall be kept up without the legislative authority;
that is, without the consent of the community itself.
Where is the impropriety of saying we shall have an army,
if necessary?
Does not the notoriety of this constitute security?
If inimical nations were to fall upon us when defenseless,
what would be the consequence?
Would it be wise to say, that we should have no defense?
Give me leave to say that the only possible way to provide
against standing armies is to make them unnecessary.
The way to do this is to organize and discipline our militia,
so as to render them capable of defending the country
against external invasions and internal insurrections.
But it is urged that abuses may happen.
How is it possible to answer objections
against possibility of abuses?
It must strike every logical reasoner
that these cannot be entirely provided against.
I really thought that the objection
to the militia was at an end.
Was there ever a constitution in which, if authority was
vested, it must not have been executed by force, if resisted?
Was it not in the contemplation of this state,
when contemptuous proceedings were expected,
to recur to something of this kind?
How is it possible to have a more proper resource than this?
That the laws of every country ought to be executed,
cannot be denied.
That force must be used if necessary, cannot be denied.
Can any government be established,
that will answer any purpose whatever,
unless force be provided for executing its laws?
The Constitution does not say that a standing army
shall be called out to execute the laws.
Is not this a more proper way?
The militia ought to be called forth to suppress smugglers.
Will this be denied?
The case actually happened at Alexandria.
There were a number of smugglers, who were
too formidable for the civil power to overcome.
The militia quelled the sailors, who otherwise
would have perpetrated their intentions.
Should a number of smugglers have a number of ships,
the militia ought to be called forth to quell them.
We do not know but what there may be
combinations of smugglers in Virginia hereafter.
We all know the use made of the Isle of Man.
It was a general depositary of contraband goods.
The parliament found the evil so great, as to render it
necessary to wrest it out of the hands of its possessor.
The honorable gentleman says,
it is a government of force.
If he means military force,
the clause under consideration proves the contrary.
There never was a government without force.
What is the meaning of government?
An institution to make people do their duty.
A government leaving it to a man to do his duty, or not,
as he pleases, would be a new species of government,
or rather no government at all.
The ingenuity of the gentleman is remarkable,
in introducing the riot act of Great Britain.
That act has no connection or analogy to any regulation
of the militia: Nor is there anything in the Constitution to
warrant the general government to make such an act.
It never was a complaint in Great Britain,
that the militia could be called forth.
If riots should happen, the militia are proper to quell it,
to prevent a resort to another mode.
As to the infliction of ignominious punishments,
we have no ground of alarm,
if we consider the circumstances of the people at large.
There will be no punishments so ignominious
as have been inflicted already.
The militia law of every state to the north of Maryland
is less rigorous than the particular law of this state.
If a change be necessary to be made
by the general government, it will be in our favor.
I think that the people of those states would not agree
to be subjected to a more harsh punishment
than their own militia laws inflict.
An observation fell from a gentleman on the same side
with myself, which deserves to be attended to.
If we be dissatisfied with the national government—
if we should choose to renounce it,
this is an additional safe-guard to our defense.
I conceive that we are peculiarly interested
in giving the general government
as extensive means as possible to protect us.
If there be a particular discrimination between
places in America, the southern states are from their
situation and circumstances most interested in giving the
national government the power of protecting its members.
An act passed a few years ago in this state
to enable the government to call forth the militia
to enforce the laws, when a powerful combination
should take place to oppose them.
This is the same power which the Constitution is to have.
There is a great deal of difference between
calling forth the militia, when a combination is formed
to prevent the execution of the laws,
and the sheriff or constable carrying with him
a body of militia to execute them in the first instance;
which is a construction not warranted by the clause.
There is an act also in this state, empowering the officers
of the customs to summon any persons to assist them
when they meet with obstruction in executing their duty.
This shows the necessity of giving the government power
to call forth the militia when the laws are resisted.
It is a power vested in every legislature in the union,
and which is necessary to every government.5
Madison also spoke on June 17 about the “Slave Trade Clause.”
This is his short speech:
Mr. Chairman—I should conceive this clause to be
impolitic, if it were one of those things which could be
excluded without encountering greater evils.
The southern states would not have entered into the union
of America without the temporary permission of that trade.
And if they were excluded from the union,
the consequences might be dreadful to them and to us.
We are not in a worse situation than before.
That traffic is prohibited by our laws,
and we may continue the prohibition.
The union in general is not in a worse situation.
Under the articles of confederation,
it might be continued forever:
But by this clause an end may be put to it
after twenty years.
There is therefore an amelioration of our circumstances.
A tax may be laid in the meantime; but it is limited,
otherwise congress might lay such a tax
as would amount to a prohibition.
From the mode of representation and taxation,
congress cannot lay such a tax on slaves
as will amount to manumission.
Another clause secures us that property
which we now possess.
At present if any slave elopes to any of those states where
slaves are free, he becomes emancipated by their laws.
For the laws of the states are uncharitable
to one another in this respect.
But in this Constitution, “no person held to service or labor
in one state under the laws thereof escaping into another,
shall in consequence of any law or regulation therein,
be discharged from such service or labor;
but shall be delivered up on claim of the party
to whom such service or labor may be due.”
This clause was expressly inserted
to enable owners of slaves to reclaim them.
This is a better security than any that now exists.
No power is given to the general government
to interpose with respect to the property
in slaves now held by the states.
The taxation of this state being equal only to its
representation, such a tax cannot be laid as he supposes.
They cannot prevent the importation of slaves
for twenty years; but after that period they can.
The gentlemen from South Carolina and Georgia
argued in this manner:
“We have now liberty to import this species of property,
and much of the property now possessed has been
purchased or otherwise acquired in contemplation of
improving it by the assistance of imported slaves.
What would be the consequence of hindering us from it?
The slaves of Virginia would rise in value,
and we would be obliged to go to your markets.”
I need not expatiate on this subject.
Great as the evil is,
a dismemberment of the union would be worse.
If those states should disunite from the
other states for not indulging them
in the temporary continuance of this traffic,
they might solicit and obtain aid from foreign powers.6
On 20 June 1788 James Madison gave a long speech on the Judicial Power.
Mr. Chairman—Permit me to make a few observations
which may place this part in a more favorable light
than the gentleman placed it in yesterday.
It may be proper to remark that the organization
of the general government for the United States
was in all its parts very difficult.
There was a peculiar difficulty in that of the Executive.
Everything incident to it
must have participated of that difficulty.
That mode which was judged most expedient was adopted,
till experience should point out one more eligible.
This part was also attended with difficulties.
It claims the indulgence of a fair and liberal interpretation.
I will not deny that according to my view of the subject,
a more accurate attention might place it in terms which
would exclude some of the objections now made to it.
But if we take a liberal construction, I think
we shall find nothing dangerous or inadmissible in it.
In compositions of this kind it is difficult to avoid
technical terms which have the same meaning.
An attention to this may satisfy gentlemen that precision
was not so easily obtained as may be imagined.
I will illustrate this by one thing in the Constitution.
There is a general power to provide courts
to try felonies and piracies committed on the high seas.
Piracy is a word which may be considered
as a term of the law of nations.
Felony is a word unknown to the law of nations
and is to be found in the British laws,
and from thence adopted in the laws of these states.
It was thought dishonorable
to have recourse to that standard.
A technical term of the law of nations is therefore used,
that we should find ourselves authorized to introduce it
into the laws of the United States.
The first question which I shall consider is whether
the subjects of its cognizance be proper subjects
of a federal jurisdiction.
The second will be whether the provisions respecting it
be consistent with safety and propriety, will answer
the purposes intended and suit local circumstances.
The first class of cases to which its jurisdiction extends
are those which may arise under the Constitution,
and this is to extend to equity as well as law.
It may be a misfortune that in organizing any government
the explication of its authority should be left
to any of its co-ordinate branches.
There is no example in any country where it is otherwise.
There is a new policy in submitting it
to the judiciary of the United States.
That causes of a federal nature will arise will be obvious
to every gentleman, who will recollect that the states
are laid under restrictions; and that the rights
of the union are secured by these restrictions.
They may involve equitable as well as legal controversies.
With respect to the laws of the union, it is so necessary
and expedient that the judicial power should correspond
with the legislative, that it has not been objected to.
With respect to treaties there is a peculiar propriety
in the judiciary expounding them.
These may involve us in controversies with foreign nations.
It is necessary therefore that they should be determined
in the courts of the general government.
There are strong reasons why there should be
a supreme court to decide such disputes.
If in any case uniformity be necessary,
it must be in the exposition of treaties.
The establishment of one revisionary superintending power
can alone secure such uniformity.
The same principles hold with respect to cases
affecting ambassadors and foreign ministers.
To the same principles may also be referred
their cognizance in admiralty and maritime cases.
As our intercourse with foreign nations will be affected
by decisions of this kind, they ought to be uniform.
This can only be done by giving
the federal judiciary exclusive jurisdiction.
Controversies affecting the interest of the United States
ought to be determined by their own judiciary
and not be left to partial local tribunals.
The next case, where two or more states are the parties,
is not objected to.
Provision is made for this by the existing
articles of confederation; and there can be no
impropriety in referring such disputes to this tribunal.
Its jurisdiction in controversies between a state and
citizens of another state is much objected to
and perhaps without reason.
It is not in the power of individuals
to call any state into court.
The only operation it can have is that
if a state should wish to bring suit against a citizen,
it must be brought before the federal court.
This will give satisfaction to individuals,
as it will prevent citizens on whom a state may have
a claim, being dissatisfied with the state courts.
It is a case which cannot often happen,
and if it should be found improper, it will be altered.
But it may be attended with good effects.
This may be illustrated by other cases.
It is provided that citizens of different states
may be carried to the federal court.
But this will not go beyond the cases
where they may be parties.
A femme covert may be a citizen of another state
but cannot be a party in this court.
A subject of a foreign power having a dispute with a citizen
of this state may carry it to the federal court;
but an alien enemy cannot bring suit at all.
It appears to me that this can have no operation but this—
to give a citizen a right to be heard in the federal court;
and if a state should condescend to be a party,
this court may take cognizance of it.
As to its cognizance of disputes between
citizens of different states, I will not say
it is a matter of such importance.
Perhaps it might be left to the state courts.
But I sincerely believe this provision
will be rather salutary than otherwise.
It may happen that a strong prejudice may arise
in some states against the citizens of others,
who may have claims against them.
We know what tardy and even defective
administration of justice has happened in some states.
A citizen of another state might not chance to get justice in a
state court, and at all events he might think himself injured.
To the next clause there is no objection.
The next case provides for disputes
between a foreign state and one of our states,
should such a case ever arise, and between
a citizen and a foreign citizen or subject.
I do not conceive that any controversy can ever be decided
in these courts between an American state
and a foreign state without the consent of the parties.
If they consent, provision is here made.
The disputes ought to be tried by the national tribunal.
This is consonant to the law of nations.
Could there be a more favorable or eligible provision
to avoid controversies with foreign powers?
Ought it to be put in the power of a member
of the union to drag the whole community into war?
As the national tribunal is to decide, justice will be done.
It appears to me from this review that,
though on some of the subjects of this jurisdiction,
it may seldom or never operate, and though others
be of inferior consideration; yet they are mostly of
great importance and indispensably necessary.
The second question which I proposed to consider was
whether such organization be made as would be safe
and convenient for the states and the people at large.
Let us suppose that the subjects of its jurisdiction had been
only enumerated, and power given to the general legislature
to establish such courts as might be judged necessary
and expedient; I do not think that in that case
any rational objection could be made to it,
any more than would be made to a general power
of legislation in certain enumerated cases.
If that would be safe, this appears to me better
and more restrictive, so far as it might be
abused by an extension of power.
The most material part is the discrimination of superior
and inferior jurisdiction, and the arrangement of its powers:
as where it shall have original
and where appellate cognizance.
Where it speaks of appellate jurisdiction,
it expressly provides that such regulations will be made
as will accommodate every citizen,
so far as is practicable in any government.
The principal criticism which has been made was
against the appellate cognizance, as well of fact as law.
I am happy that the honorable member who presides,
and who is familiarly acquainted with the subject does
not think it involves anything unnecessarily dangerous.
I think that the distinction of fact as well as law may be
satisfied by the discrimination of the civil and common law.
But if gentlemen should contend that appeals as to fact
can be extended to jury cases, I contend
that by the word regulations it is in the power of congress
to prevent it or prescribe such a mode
as will secure the privilege of jury trial.
They may make a regulation
to prevent such appeals entirely:
Or they may remand the fact or send it to
an inferior contiguous court to be tried;
or otherwise preserve that ancient and important trial.
Let me observe that so far as the judicial power may extend
to controversies between citizens of different states,
and so far as it gives them power to correct by another trial,
a verdict obtained by local prejudices,
it is favorable to those states who carry on commerce.
There are a number of commercial states,
who carry on trade for other states.
Should the states in debt to them make unjust regulations,
the justice that would be obtained by the creditors
might be merely imaginary and nominal.
It might be either entirely denied or partially granted.
This is no imaginary evil.
Before the war New York was to a great amount
a creditor of Connecticut:
While it depended on the laws and regulations
of Connecticut, she might withhold payment.
If I be not misinformed, there were reasons to complain.
These illiberal regulations and causes of complaint
obstruct commerce.
So far as this power may be exercised,
Virginia will be benefited by it.
It appears to me from the most correct view
that by the word regulations authority is given them
to provide against all inconveniences;
and so far as it is exceptionable, they can remedy it.
This they will do if they be worthy
of the trust we put in them.
I think them worthy of that confidence
which that paper puts in them.
Were I to select a power which might be given
with confidence, it would be judicial power.
This power cannot be abused without
raising the indignation of all the people of the states.
I cannot conceive that they would encounter this odium.
Leaving behind them their characters and friends,
and carrying with them local prejudices,
I cannot think they would run such a risk.
That men should be brought from all parts of the union
to the seat of government on trivial occasions
cannot reasonably be supposed.
It is a species of possibility;
but there is every degree of probability against it.
I would as soon believe, that by virtue of the power
of collecting taxes or customs, they would compel every
man to go and pay the money for his taxes with his own
hands to the federal treasurer, as I would believe this.
If they would not do the one, they would not the other.
I am of opinion, and my reasoning
and conclusions are drawn from facts,
that as far as the power of congress can extend,
the judicial power will be accommodated
to every part of America.
Under this conviction I conclude that the legislature,
instead of making the supreme federal court
absolutely stationary, will fix it in different parts
of the continent to render it more convenient.
I think this idea perfectly warrantable.
There is an example within our knowledge
which illustrates it.
By the confederation congress have an exclusive right
of establishing rules for deciding in all cases,
what captures should be legal and
establishing courts for determining such cases finally.
A court was established for that purpose,
which was at first stationary.
Experience and the desire of accommodating the decisions
of this court to the convenience of the citizens
of the different parts of America had this effect—
it soon became a regulation that this court should be held
in different parts of America and was held so accordingly.
If such a regulation was made, when only the interest
of the small number of people who are concerned with
captures was affected, will not the public convenience
be consulted when that of a very considerable proportion
of the people of America will be concerned?
It will be also in the power of congress to vest this power
in the state courts, both inferior and superior.
This they will do when they find the tribunals of the states
established on a good footing.
Another example will illustrate this subject further.
By the confederation congress are authorized
to establish courts for trying piracies
and felonies committed on the high seas.
Did they multiply courts unnecessarily in this case?
No, sir, they invested the admiralty courts
of each state with this jurisdiction.
Now, sir, if there will be as much sympathy between
congress and the people, as now, we may fairly conclude,
that the federal cognizance will
be vested in the local tribunals.
I have observed that gentlemen suppose that the
general legislature will do every mischief they possibly can,
and that they will omit to do everything good
which they are authorized to do.
If this were a reasonable supposition,
their objections would be good.
I consider it reasonable to conclude,
that they will as readily do their duty as deviate from it:
Nor do I go on the grounds mentioned by gentlemen
on the other side—that we are to place unlimited
confidence in them and expect nothing but
the most exalted integrity and sublime virtue.
But I go on this great republican principle that
the people will have virtue and intelligence
to select men of virtue and wisdom.
Is there no virtue among us?
If there be not, we are in a wretched situation.
No theoretical checks—
no form of government can render us secure.
To suppose that any form of government will secure
liberty or happiness without any virtue in the people
is a chimerical idea.
If there be sufficient virtue and intelligence
in the community, it will be exercised
in the selection of these men.
So that we do not depend on their virtue
or put confidence in our rulers,
but in the people who are to choose them.
Having taken this general view of the subject,
I will now advert to what has fallen
from the honorable gentleman who presides.
His criticism is that the judiciary has not been guarded
from an increase of the salary of the judges.
I wished myself to insert a restraint on the augmentation
as well as diminution of their compensation
and supported it in the convention.
But I was over-ruled.
I must state the reasons which were urged.
They had great weight.
The business must increase
if there was no power to increase their pay
according to the increase of business
during the life of the judges, it might happen
that there would be such an accumulation of business,
as would reduce the pay to a most trivial consideration.
This reason does not hold as to the president.
For in the short period which he presides
this cannot happen.
His salary ought not therefore to be increased.
It was objected yesterday that
there was no provision for a jury from the vicinage.
If it could have been done with safety,
it would not have been opposed.
It might so happen that a trial
would be impracticable in the county.
Suppose a rebellion in a whole district,
would it not be impossible to get a jury?
The trial by jury is held as sacred in England as in America.
There are deviations of it in England:
yet greater deviations have happened here
since we established our independence,
than have taken place there for a long time,
though it be left to the legislative discretion.
It is a misfortune in any case that this trial should be
departed from; yet in some cases it is necessary.
It must be therefore left to the discretion of the
legislature to modify it according to circumstances.
This is a complete and satisfactory answer.
It was objected that this jurisdiction would extend
to all cases and annihilate the state courts.
At this moment of time it might happen that there are
many disputes between citizens of different states.
But in the ordinary state of things I believe that any
gentleman will think that the far greater
number of causes—ninety-nine out of a hundred
will remain with the state judiciaries.
All controversies directly between citizen and citizen
will still remain with the local courts.
The number of cases within the jurisdiction of these
courts are very small when compared to those
in which the local tribunals will have cognizance.
No accurate calculation can be made,
but I think that any gentleman who will contemplate
the subject at all must be struck with this truth.
As to vexatious appeals,
they can be remedied by congress.
It would seldom happen that mere wantonness would
produce such an appeal or induce a man to sue unjustly.
If the courts were on a good footing in the states,
what can induce them to take so much trouble?
I have frequently in the discussion of this subject
been struck with one remark.
It has been urged that this would be oppressive
to those who by imprudence or otherwise
are under the denomination of debtors.
I know not how this can be conceived.
I will venture one observation.
If this system should have the effect of establishing
universal justice and accelerating it throughout America,
it will be one of the most fortunate circumstances
that could happen for those men.
With respect to that class of citizens compassion is their due.
To those however, who are involved in such incumbrances,
relief cannot be granted.
Industry and economy are their only resources.
It is in vain to wait for money or temporize.
The great desiderata are public and private confidence.
No country in the world can do without them.
Let the influx of money be ever so great,
if there be no confidence, property will sink in value,
and there will be no inducements or emulation to industry.
The circulation of confidence is better than
the circulation of money.
Compare the situation of nations in Europe,
where justice is administered with celerity,
to that of those where it is refused or administered tardily.
Confidence produces the best effects in the former.
The establishment of confidence will raise
the value of property and relieve those
who are so unhappy as to be involved in debts.
If this be maturely considered, I think it will be found,
that as far as it will establish uniformity of justice,
it will be of real advantage to such persons.
I will not enter into those considerations
which the honorable gentleman added.
I hope some other gentleman
will undertake to answer him.7
Virginia by a 89 to 79 vote ratified the new Constitution on June 25,
and they were followed by New York the next day.
At the end of Virginia’s convention on June 27 George Whythe was chairman
of a committee that included Patrick Henry, James Madison, George Mason,
and John Marshall to examine and evaluate proposed amendments for a Bill of Rights.
The Constitution of the United States went into effect on 2 July 1788,
and Madison delivered Virginia’s ratification to the Congress in New York on July 14.
On August 28 George Washington in a letter to Benjamin Lincoln wrote,
That many amendments and explanations might and
should take place, I have no difficulty in conceding;
but I will confess that my apprehension is that the New York
circular Letter is intended to bring on a general Convention
at too early a period, and in short by referring the subject
to the Legislatures to set everything afloat again.
I wish I may be mistaken in imagining that there are
persons, who upon finding they could not carry their
point by an open attack against the Constitution, have
some sinister designs to be silently effected if possible.
But I trust in that Providence which has saved us
in six troubles, yea in seven, to rescue us again
from any imminent, though unseen, dangers.
Nothing, however, on our part ought to be left undone.
I conceive it to be of unspeakable importance,
that whatever there be of wisdom & prudence
& patriotism on the Continent should be concentrated
in the public Councils at the first outset.8
James Madison became so famous and respected that many people
in France asked Minister Thomas Jefferson for a letter of introduction to him.
Jefferson and Madison worked out a code so that Jefferson could
indicate his appraisal of the person for Madison secretly.
On 17 October 1788 Madison wrote to Jefferson,
In Virginia I have seen the bill of rights violated in every
instance where it has been opposed to a popular current.
Notwithstanding the explicit provision contained in that
instrument for the rights of Conscience, it is well known that
a religious establishment would have taken place in that
State, if the legislative majority had found as they expected,
a majority of the people in favor of the measure;
and I am persuaded that if a majority of the people were
now of one sect, the measure would still take place and on
narrower ground than was then proposed, notwithstanding
the additional obstacle which the law has since created.
Wherever the real power in a Government lies,
there is the danger of oppression.
In our Governments the real power lies in the majority
of the Community, and the invasion of private rights
is chiefly to be apprehended, not from acts of Government
contrary to the sense of its constituents, but from
acts in which the Government is the mere instrument
of the major number of the constituents….
With regard to monopolies they are justly classed
among the greatest nuisances in Government.
But is it clear that as encouragements to literary
works and ingenious discoveries, they are not
too valuable to be wholly renounced?
Would it not suffice to reserve in all cases
a right to the Public to abolish the privilege
at a price to be specified in the grant of it?
Is there not also infinitely less danger of this
abuse in our Governments than in most others?
Monopolies are sacrifices of the many to the few.
Where the power is in the few, it is natural for them to
sacrifice the many to their own partialities and corruptions.
Where the power, as with us, is in the many
not in the few, the danger cannot be very great
that the few will be thus favored.
It is much more to be dreaded that the few
will be unnecessarily sacrificed to the many.9
Congressional elections took place in autumn.
Madison was elected 202 to 187 over another delegate James Gordon,
who also supported the Constitution.
The presidential election with the Electoral College extended from
15 December 1788 to 7 January 1789, and George Washington
was overwhelmingly elected the first President of the United States,
winning 90% of the popular votes and all ten states that voted.
Washington had 69 electoral votes, and John Adams
was second with 34 which made him the Vice President.
As Washington began his administration he
seemed to rely on James Madison the most.
Madison left New York and spent seven days with Washington at Mount Vernon.
Washington accepted his ideas for his inaugural address
and was guided by Madison’s advice on cabinet appointments.
They both liked Thomas Jefferson for Secretary of State.
While he was still in France, they agreed to nominate John Jay
temporarily until Jefferson returned.
Madison also agreed with Washington’s choice
of Alexander Hamilton for Treasury Secretary.
Madison went along with Washington’s choice of Henry Knox
for Secretary of War, and Madison persuaded the President to
nominate Edmund Randolph of Virginia to be Attorney General.
Madison opposed pretentious titles and urged Washington
to be called “Mr. President,” and he agreed.
On 2 February 1789 James Madison was elected to the
United States House of Representatives with 1,307 votes to 972
for James Monroe even though the legislature
had arranged a district that favored Monroe.
The House of Representatives reached a quorum on April 1 in New York City.
One week later Madison began working on developing revenues
to pay down the national debt from the Revolutionary War.
He urged high import duties especially on luxuries such as
alcoholic beverages, tea, coffee, cocoa, sugar, spices, and molasses.
He and Jefferson worked on increasing trade with France.
On April 9 Madison introduced in the Congress
his ideas on import and tonnage duties.
This is his concluding paragraph:
The impost laid on trade for the purpose of obtaining
revenue may likewise be considered as an exception;
so far therefore as revenue can be more conveniently
and certainly raised by this, than any other method
without injury to the community, and its operation
will be in due proportion to the consumption,
which consumption is generally proportioned
to the circumstances of individuals.
I think sound policy dictates to use this mean; but it will
be necessary to confine our attention at this time
peculiarly to the object of revenue because the
other subject involves some intricate questions,
to unravel which we perhaps are not prepared.
I have no objection to the committees accepting the
propositions offered by the gentleman from Pennsylvania
because so far as we can enumerate the proper objects
and apply specific duties to them, we conform to the
practice prevalent in many of the states and adopt
the most laudable method of collecting revenue,
at least preferable to laying a general tax.
Whether therefore we consult ease and convenience
in collection, or pursuing habits already adopted and
approved, specific duties as far as the articles can
properly be enumerated is the more eligible mode
of obtaining the end in contemplation—upon the whole,
as I think some of the propositions may be productive
of revenue, and some may protect our domestic
manufacture, though the latter subject ought not
to be too confusedly blended with the former.
I hope the committee will receive them and let them
lay over in order that we may have time to consider
how far they are consistent with justice and policy.10
Madison brought up import duties again on April 25,
and the
House of Representatives passed a 15-cent duty on Jamaica rum.
On April 28 Madison responded to complaints on
some of his tariffs such as molasses and rum.
On 30 April 1789 President George Washington
in civilian clothes gave this inaugural address:
Fellow Citizens of the Senate
and the House of Representatives.
Among the vicissitudes incident to life, no event
could have filled me with greater anxieties than that of
which the notification was transmitted by your order
and received on the fourteenth day of the present month.
On the one hand, I was summoned by my Country,
whose voice I can never hear but with veneration and love,
from a retreat which I had chosen with the fondest
predilection, and in my flattering hopes with an immutable
decision, as the asylum of my declining years:
a retreat which was rendered every day more necessary
as well as more dear to me by the addition of habit
to inclination and of frequent interruptions in my health
to the gradual waste committed on it by time.
On the other hand, the magnitude and difficulty of the trust
to which the voice of my Country called me, being sufficient
to awaken in the wisest and most experienced of her
citizens, a distrustful scrutiny into his qualifications,
could not but overwhelm with despondence one, who
inheriting inferior endowments from nature and unpracticed
in the duties of civil administration, ought to be peculiarly
conscious of his own deficiencies.
In this conflict of emotions, all I dare aver is that it has been
my faithful study to collect my duty from a just appreciation
of every circumstance by which it might be affected.
All I dare hope is that, if in executing this task,
I have been too much swayed by a grateful remembrance
of former instances or by an affectionate sensibility to this
transcendent proof of the confidence of my fellow-citizens;
and have thence too little consulted my incapacity as well as
disinclination for the weighty and untried cares before me;
my error will be palliated by the motives which misled me,
and its consequences be judged by my Country
with some share of the partiality in which they originated.
Such being the impressions under which I have
in obedience to the public summons, repaired to the present
station; it would be peculiarly improper to omit in this
first official Act my fervent supplications to that Almighty
Being who rules over the Universe, who presides in the
Councils of Nations, and whose providential aids can supply
every human defect, that his benediction may consecrate
to the liberties and happiness of the People of the
United States a Government instituted by themselves
for these essential purposes: and may enable every
instrument employed in its administration to execute
with success the functions allotted to his charge.
In tendering this homage to the Great Author of every public
and private good I assure myself that it expresses your
sentiments not less than my own;
nor those of my fellow-citizens at large less than either.
No People can be bound to acknowledge and adore
the invisible hand, which conducts the Affairs of men
more than the People of the United States.
Every step by which they have advanced to the character
of an independent nation seems to have been
distinguished by some token of providential agency.
And in the important revolution just accomplished in
the system of their United Government, the tranquil
deliberations and voluntary consent of so many distinct
communities from which the event has resulted
cannot be compared with the means by which most
Governments have been established without some return
of pious gratitude along with a humble anticipation of
the future blessings which the past seems to presage.
These reflections, arising out of the present crisis,
have forced themselves too strongly
on my mind to be suppressed.
You will join with me, I trust, in thinking that there are none
under the influence of which the proceedings of a new
and free Government can more auspiciously commence.
By the article establishing the Executive Department
it is made the duty of the President “to recommend
to your consideration such measures
as he shall judge necessary and expedient.”
The circumstances under which I now meet you,
will acquit me from entering into that subject,
farther than to refer to the Great Constitutional Charter
under which you are assembled;
and which in defining your powers designates
the objects to which your attention is to be given.
It will be more consistent with those circumstances,
and far more congenial with the feelings which actuate me,
to substitute in place of a recommendation of particular
measures the tribute that is due to the talents,
the rectitude, and the patriotism which adorn
the characters selected to devise and adopt them.
In these honorable qualifications I behold the surest
pledges that as on one side no local prejudices or
attachments, no separate views nor party animosities
will misdirect the comprehensive and equal eye which
ought to watch over this great assemblage of communities
and interests: so on another, that the foundations of our
National policy will be laid in the pure and immutable
principles of private morality; and the pre-eminence
of a free Government be exemplified by all the
attributes which can win the affections of its Citizens
and command the respect of the world.
I dwell on this prospect with every satisfaction
which an ardent love for my Country can inspire:
since there is no truth more thoroughly established
than that there exists in the economy and course of nature
an indissoluble union between virtue and happiness,
between duty and advantage, between the genuine
maxims of an honest and magnanimous policy
and the solid rewards of public prosperity and felicity;
since we ought to be no less persuaded that the propitious
smiles of Heaven can never be expected on a nation
that disregards the eternal rules of order and right,
which Heaven itself has ordained:
and since the preservation of the sacred fire of liberty,
and the destiny of the Republican model of Government
are justly considered as deeply, perhaps as finally
staked on the experiment entrusted
to the hands of the American people.
Besides the ordinary objects submitted to your care,
it will remain with your judgment to decide how far
an exercise of the occasional power delegated
by the Fifth article of the Constitution is rendered
expedient at the present juncture by the nature of objections
which have been urged against the System or by the
degree of inquietude which has given birth to them.
Instead of undertaking particular recommendations
on this subject in which I could be guided
by no lights derived from official opportunities,
I shall again give way to my entire confidence
in your discernment and pursuit of the public good.
For I assure myself that while you carefully avoid
every alteration which might endanger the benefits
of a United and effective Government, or which
ought to await the future lessons of experience;
a reverence for the characteristic rights of freemen,
and a regard for the public harmony will sufficiently
influence your deliberations on the question how far
the former can be more impregnably fortified
or the latter be safely and advantageously promoted.
To the preceding observations I have one to add,
which will be most properly addressed
to the House of Representatives.
It concerns myself and will therefore be as brief as possible.
When I was first honored with a call into the
Service of my Country, then on the eve of an
arduous struggle for its liberties, the light in which
I contemplated my duty required that
I should renounce every pecuniary compensation.
From this resolution I have in no instance departed.
And being still under the impressions which produced it,
I must decline as inapplicable to myself any share in the
personal emoluments, which may be indispensably included
in a permanent provision for the Executive Department
and must accordingly pray that the pecuniary estimates
for the Station in which I am placed may during
my continuance in it be limited to such actual
expenditures as the public good may be thought to require.
Having thus imparted to you my sentiments,
as they have been awakened by the occasion
which brings us together, I shall take my present leave;
but not without resorting once more to the benign parent
of the human race in humble supplication that
since he has been pleased to favor the American people
with opportunities for deliberating in perfect tranquility,
and dispositions for deciding with unparalleled unanimity
on a form of Government for the security of their Union,
and the advancement of their happiness;
so his divine blessing may be equally conspicuous
in the enlarged views, the temperate consultations,
and the wise measures on which
the success of this Government must depend.11
On May 5 President Washington wrote to Madison asking him to determine
in the House what are the precedents based on fixed principles in their situation.
On May 11 Madison wrote short letters to Jefferson and Washington
before delivering this speech in the Congress:
I may be well disposed to concur in opinion with
gentlemen that we ought not to recede from our former
vote on this subject; yet at the same time I may wish to
proceed with due respect to the Senate and give dignity
and weight to our own opinion so far as it contradicts theirs
by the deliberate and decent manner in which we decide.
For my part, Mr. Speaker, I do not conceive titles to be
so pregnant with danger as some gentlemen apprehend.
I believe a President of the United States clothed
with all the powers given in the Constitution would
not be a dangerous person to the liberties of America,
if you were to load him with all the titles of Europe or Asia.
We have seen superb and august titles given without
conferring power and influence or without even obtaining
respect; one of the most impotent sovereigns in Europe
has assumed a title as high as human invention can devise;
for example, what words can imply a greater magnitude
of power and strength than that of high mightiness;
this title seems to border almost upon impiety;
it is assuming the pre-eminence and omnipotence
of the deity; yet this title and many others cast
in the same mold have obtained a long time in Europe,
but have they conferred power?
Does experience sanctify such opinion?
Look at the republic I have alluded to
and say if their present state warrants the idea.
I am not afraid of titles because I fear the danger
of any power they could confer, but I am against them
because they are not very reconcilable with the nature
of our government or the genius of the people;
even if they were proper in themselves,
they are not so at this juncture of time.
But my strongest objection is founded in principle;
instead of increasing they diminish the true dignity
and importance of a republic and would in particular
on this occasion diminish the true dignity
of the first magistrate himself.
If we give titles, we must either borrow or invent them—
if we have recourse to the fertile fields of luxuriant fancy
and deck out an airy being of our own creation;
it is a great chance but its fantastic properties
renders the empty phantom ridiculous and absurd.
If we borrow, the servile imitation will be odious,
not to say ridiculous also—we must copy from the
pompous sovereigns of the east or follow the
inferior potentates of Europe; in either case,
the splendid tinsel or gorgeous robe would
disgrace the manly shoulders of our Chief.
The more truly honorable shall we be, by showing
a total neglect and disregard to things of this nature;
the more simple, the more republican we are in our
manners, the more rational dignity we acquire;
therefore I am better pleased with the report adopted by the
house than I should have been with any other whatsoever.
The Senate, no doubt, entertain
different sentiments on this subject.
I would wish therefore to treat their opinion
with respect and attention.
I would desire to justify the reasonable and republican
decision of this house to the other branch of Congress
in order to prevent a misunderstanding.
But that the motion of my worthy colleague, (Mr. Parker)
has possession of the house, I would move a more
temperate proposition, and I think it deserves
some pains to bring about that good will and urbanity,
which for the dispatch of public business,
ought to be kept up between the two houses.
I do not think it would be a sacrifice of dignity to appoint
a committee of conference, but imagine it would tend to
cement that harmony which has hitherto been preserved
between the Senate and this House—
therefore, while I concur with the gentlemen who express in
such decided terms, their disapprobation of bestowing titles,
I concur also with those who are for the appointment of a
committee of conference not apprehending they will depart
from the principles adopted and acted upon by the House.12
On 8 June 1789 Madison made a long speech on proposed
amendments to the Constitution, and he recommended these:
First. That there be prefixed to the Constitution a
declaration—That all power is originally vested in
and consequently derived from the people.
That government is instituted and ought to be exercised
for the benefit of the people; which consists in the
enjoyment of life and liberty with the right of acquiring
and using property, and generally of pursuing
and obtaining happiness and safety.
That the people have an indubitable, unalienable,
and indefeasible right to reform or change
their government, whenever it be found adverse
or inadequate to the purposes of its institution.
Secondly. That in article 1st section 2 clause 3
these words be struck out, to wit,
“The number of representatives shall not exceed one for
every thirty thousand, but each state shall have at least one
representative, and until such enumeration shall be made.”
And that in place thereof be inserted these words, to wit,
“After the first actual enumeration, there shall be one
representative for every thirty thousand,
until the number amount to after which the proportion
shall be so regulated by congress, that the number shall
never be less than nor more than but each state
shall after the first enumeration, have
at least two representatives; and prior thereto.”
Thirdly. That in article 1st, section 6, clause 1, there be
added to the end of the first sentence, these words, to wit,
“But no law varying the compensation last ascertained shall
operate before the next ensuing election of representatives.”
Fourthly. That in article 1st, section 9, between clauses 3
and 4, be inserted these clauses, to wit,
The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion
be established, nor shall the full and equal rights of
conscience be in any manner or on any pretext infringed.
The people shall not be deprived or abridged of their right
to speak, to write, or to publish their sentiments;
and the freedom of the press, as one of the great
bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably
assembling and consulting for their common good;
nor from applying to the legislature by petitions
remonstrances for redress of their grievances.
The right of the people to keep and bear arms
shall not be infringed; a well armed, and well regulated
militia being the best security of a free country:
but no person religiously scrupulous of bearing arms
shall be compelled to render military service in person.
No soldier shall in time of peace be quartered
in any house without the consent of the owner;
nor at any time but in a manner warranted by law.
No person shall be subject, except in cases of impeachment,
to more than one punishment
or one trial for the same offense;
nor shall be compelled to be a witness against himself;
nor be deprived of life, liberty, or property
without due process of law; nor be obliged to relinquish
his property, where it may be necessary for public use,
without a just compensation.
Excessive bail shall not be required nor excessive fines
imposed nor cruel and unusual punishments inflicted.
The rights of the people to be secured in their persons,
their houses, their papers, and their other property from all
unreasonable searches and seizures, shall not be violated
by warrants issued without probable cause supported by
oath or affirmation or not particularly describing the places
to be searched or the persons or things to be seized.
In all criminal prosecutions the accused shall enjoy the right
to a speedy and public trial, to be informed of the cause and
nature of the accusation, to be confronted with his accusers,
and the witnesses against him; to have a compulsory
process for obtaining witnesses in his favor;
and to have the assistance of counsel for his defense.
The exceptions here or elsewhere in the Constitution,
made in favor of particular rights shall not be so construed
as to diminish the just importance of other rights retained
by the people; or as to enlarge the powers delegated
by the Constitution; but either as actual limitations of
such powers or as inserted merely for greater caution….
No state shall violate the equal rights of conscience or the
freedom of the press or the trial by jury in criminal cases….
The trial of all crimes (except in cases of impeachments
and cases arising in the land or naval forces or the militia
when on actual service in time of war or public danger)
shall be by an impartial jury of freeholders of the vicinage,
with the requisite of unanimity for conviction,
of the right of challenge, and other accustomed requisites;
and in all crimes punishable with loss of life or member,
presentment or indictment by a grand jury,
shall be an essential preliminary, provided that
in cases of crimes committed within any county
which may be in possession of an enemy,
or in which a general insurrection may prevail,
the trial may by law be authorized in some other county
of the same state, as near as may be
to the seat of the offense.
In cases of crimes committed not within any county,
the trial may by law be in such county
as the laws shall have prescribed.
In suits at common law between man and man the trial
by jury, as one of the best securities to the rights
of the people ought to remain inviolate….
The powers delegated by this Constitution are
appropriated to the departments to which they are
respectively distributed: so that the legislative department
shall never exercise the powers vested in the executive
or judicial; nor the executive exercise the powers vested
in the legislative or judicial; nor the judicial exercise the
powers vested in the legislative or executive departments.
The powers not delegated by this Constitution,
nor prohibited by it to the states,
are reserved to the States respectively.13
(Portions left out were for reorganizing the numbers of the amendments.)
Madison on 16 June 1789 wrote on the power of
the presidency and how a President may be removed:
If the construction of the Constitution is to be left
to its natural course with respect to the executive
powers of this government, I own that the insertion
of this sentiment in law may not be of material importance,
though if it is nothing more than a mere declaration
of a clear grant made by the Constitution, it can do no harm;
but if it relates to a doubtful part of the Constitution,
I suppose an exposition of the Constitution may
come with as much propriety from the legislature
as any other department of government.
If the power naturally belongs to the government,
and the Constitution is undecided as to the body
which is to exercise it, it is likely that it is
submitted to the discretion of the legislature,
and the question will depend upon its own merits.
I am clearly of opinion with the gentleman from
South Carolina (Mr. Smith,) that we ought in this and
every other case to adhere to the Constitution, so far
as it will serve as a guide to us, and that we ought not
to be swayed in our decisions by the splendor of the
character of the present chief magistrate, but to
consider it with respect to the merit of men who in the
ordinary course of things may be supposed to fill the chair.
I believe the power here declared is a high one,
and in some respects a dangerous one; but in order
to come to a right decision on this point,
we must consider both sides of the question.
The possible abuses may spring from the
single will of the first magistrate, and the abuse
may spring from the combined will of
the executive and the senatorial qualification.
When we consider that the first magistrate is to be
appointed at present by the suffrages of three millions
of people, and in all human probability in a few years’
time by double that number, it is not to be presumed
that a vicious or bad character will be selected.
If the government of any country on the face of the
earth was ever effectually guarded against the election
of ambitious or designing characters to the first office
of the state, I think it may with truth be said to be
the case under the Constitution of the United States.
With all the infirmities incident to a popular election,
corrected by the particular mode of conducting it,
as directed under the present system, I think
we may fairly calculate that the instances will be
very rare in which an unworthy man will receive
that mark of the public confidence which is required
to designate the president of the United States.
Where the people are disposed to give so great an elevation
to one of their fellow citizens, I own that I am not afraid
to place my confidence in him; especially when I know
he is impeachable for any crime or misdemeanor
before the senate at all times; and that at all events
he is impeachable before the community at large every
four years and liable to be displaced if his conduct shall
have given umbrage during the time he has been in office.
Under these circumstances, although the trust is a high one,
and in some degree perhaps a dangerous one,
I am not sure but it will be safer here than placed
where some gentlemen suppose it ought to be.
It is evidently the intention of the Constitution that
the first magistrate should be responsible for the executive
department; so far therefore as we do not make the officers
who are to aid him in the duties of that department
responsible to him, he is not responsible to his country.
Again, is there no danger that an officer when he is
appointed by the concurrence of the senate and
has friends in that body, may choose rather to risk
his establishment on the favor of that branch,
than rest it upon the discharge of his duties to the
satisfaction to the executive branch, which is constitutionally
authorized to inspect and control his conduct?
And if it should happen that the officers connect themselves
with the senate, they may mutually support each other,
and for want of efficacy reduce the power of the president
to a mere vapor, in which case his responsibility
would be annihilated, and the expectation of it unjust.
The high executive officers, joined in cabal with the senate,
would lay the foundation of discord and end in an
assumption of the executive power, only to be
removed by a revolution in the government.
I believe no principle is more clearly laid down
in the Constitution than that of responsibility.
After premising this, I will proceed to an investigation
of the merits of the question upon constitutional ground.
I have since the subject was last before the house,
examined the Constitution with attention, and I
acknowledge that it does not perfectly correspond
with the ideas I entertained of it from the first glance.
I am inclined to think that a free and systematic
interpretation of the plan of government will leave us less at
liberty to abate the responsibility than gentlemen imagine.
I have already acknowledged that the powers of the
government must remain as apportioned by the Constitution.
But it may be contended that where the Constitution is silent
it becomes a subject of legislative discretion; perhaps,
in the opinion of some an argument in favor of the clause
may be successfully brought forward on this ground:
I however leave it for the present untouched.
By a strict examination of the Constitution on what
appears to be its true principles, and considering the great
departments of the government in the relation they have
to each other, I have my doubts whether we are not
absolutely tied down to the construction declared in the bill.
In the first section of the 1st article, it is said that all
legislative powers herein granted shall be vested
in a congress of the United States.
In the second article it is affirmed that the executive power
shall be vested in a president
of the United States of America.
In the third article it is declared that the judicial power
of the United States shall be vested in one supreme court,
and in such inferior courts as congress may
from time to time ordain and establish.
I suppose it will be readily admitted that so far as the
Constitution has separated the powers of these great
departments, it would be improper to combine them
together, and so far as it has left any particular department
in the entire possession of the powers incident to that
department, I conceive we ought not to qualify them
farther than they are qualified by the Constitution.
The legislative powers are vested in congress and are to be
exercised by them uncontrolled by any other department,
except the Constitution has qualified it otherwise.
The Constitution has qualified the legislative power by
authorizing the president to object to any act it may pass,
requiring in this case two-thirds of both houses to concur
in making a law; but still the absolute legislative power
is vested in the congress with this qualification alone.
The Constitution affirms, that the executive power
shall be vested in the president:
Are there exceptions to this proposition?
Yes there are.
The Constitution says that in appointing to office,
the senate shall be associated with the president,
unless in the case of inferior officers,
when the law shall otherwise direct.
Have we a right to extend this exception?
I believe not.
If the Constitution has invested all executive power in the
president, I venture to assert, that the legislature has
no right to diminish or modify his executive authority.
The question now resolves itself into this,
Is the power of displacing an executive power?
I conceive that if any power whatsoever is in its nature
executive, it is the power of appointing, overseeing,
and controlling those who execute the laws.
If the Constitution had not qualified the power of the
president in appointing to office by associating the senate
with him in that business, would it not be clear
that he would have the right by virtue of his
executive power to make such appointment?
Should we be authorized in defiance of that clause in the
Constitution—“The executive power shall be vested in a
president,” to unite the senate with the president
in the appointment to office?
I conceive not.
If it is admitted we should not be authorized to do this,
I think it may be disputed whether we have a right
to associate them in removing persons from office, the one
power being as much of an executive nature as the other,
and the first only is authorized by being excepted out of the
general rule established by the Constitution in these words,
“the executive power shall be vested in the president.”
The judicial power is vested in a supreme court,
but will gentlemen say the judicial power can be placed
elsewhere, unless the Constitution has made an exception?
The Constitution justifies the senate in exercising a judiciary
power in determining on impeachments: But can the judicial
power be farther blended with the powers of that body?
They cannot.
I therefore say it is incontrovertible, if neither the legislative
nor judicial powers are subjected to qualifications,
other than those demanded in the Constitution,
that the executive powers are equally unabatable as either
of the other; and inasmuch as the power of removal is of
an executive nature and not affected by any constitutional
exception, it is beyond the reach of the legislative body.
If this is the true construction of this instrument,
the clause in the bill is nothing more than explanatory
of the meaning of the Constitution, and therefore
not liable to any particular objection on that account.
If the Constitution is silent, and it is a power the legislature
have a right to confer, it will appear to the world,
if we strike out the clause, as if we doubted the propriety
of vesting it in the president of the United States.
I therefore think it best to retain it in the bill.14
On 30 June 1789 Madison wrote to Thomas Jefferson in France
advising him that John Jay was sent to give him permission to return to America.
Madison hoped that he would come back by the end of the year.
He explained the issues on the duties especially with the British.
On 4 September 1789 Madison spoke against a plan by New York
and Pennsylvania to move the capital to a
bank of the Susquehanna River in Pennsylvania.
Madison argued that it should be in a more central location.
He suggested that the banks of the Potomac River would be better.
Notes
1. Writings by Thomas Jefferson, p. 919.
2. Writings by James Madison, p. 364-365.
3. Ibid., p. 377-379.
4. Ibid., p. 381-382.
5. Ibid., p. 388-390.
6. Ibid., p. 391-392.
7. Ibid., p. 393-400.
8. From George Washington to Benjamin Lincoln, 28 August 1788 (Online).
9. Writings by James Madison, p. 420-421, 423.
10. Import and Tonnage Duties, [9 April] 1789 (Online).
11. Writings by George Washington, p. 730-734.
12. Writings by James Madison, p. 433-434.
13. Ibid., p. 441-444.
14. Ibid., p. 453-457.