To James Madison
[New York, April 3, 1788]
I have been very delinquent My Dear Sir in not thanking you sooner for your letter from Philadelphia.1 The remarks you make on a certain subject are important and will be attended to. There is truly much embarrassment in the case.
I think however the principles we have talked of, in respect to the legislative authorities, are not only just but will apply to the other departments.2 Nor will the consequences appear so disagreeable, as they may seem at first sight, when we attend to the true import of the rule established.3 The states retain all the authorities they were before possessed of, not alienated in the three modes pointed out;4 but this does not include cases which are the creatures of the New Constitution. For instance, the crime of treason against the United States immediately, is a crime known only to the New Constitution. There of course was no power in the state constitutions to pardon that crime. There will therefore be none under the new &c. This or something like it seems to me to afford the best solution of the difficulty.
I send you the Fœderalist from the beginning to the conclusion of the commentary on the Executive branch.5 If our suspicions of the author be right, he must be too much engaged to make a rapid progress in what remains. The Court of Chancery & a Circuit Court are now setting.
We are told that your election has succeeded;6 with which we all felicitate ourselves. I will thank you for an account of the result generally.
In this state our prospects are much as you left them—a moot point which side will prevail. Our friends to the Northward are active.
I remain Yr. affectionate & obedt serv
ALS, James Madison Papers, Library of Congress.
1. Letter not found. Madison, who had left New York on March 5, 1788, presumably wrote to H from Philadelphia en route to Virginia to attend the Virginia Ratifying Convention.
3. In this paragraph H is presumably answering questions contained in the letter Madison had written him from Philadelphia.
4. The “three modes pointed out” are discussed in The Federalist essay 62. H stated in that essay that the sovereignty of the Federal authorities was limited in the following three ways: 1. “where the Constitution in express terms granted an exclusive authority to the Union”; 2. “where it granted in one instance an authority to the Union and in another prohibited the States from exercising the like authority”; and 3. “where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.”
5. The discussion of the executive was concluded in essay 77. The first volume of The Federalist, which contained the first thirty-six essays, was published on March 22, 1788, by J. and A. McLean. H probably sent Madison a copy of this book and newspaper copies of the remaining forty-one essays.
6. Elections to the Virginia Ratifying Convention had been held during the second week in March, 1788. Madison had been elected one of the delegates to the Convention.