To Wilson Cary Nicholas
Monticello Sep. 7. 1803.
Your favor of the 3d was delivered me at court: but we were much disappointed at not seeing you here, mr Madison & the Govr. being here at the time. I inclose you a letter from Monroe on the subject of the late treaty. you will observe a hint in it to do without delay what we are bound to do. there is reason, in the opinion of our ministers, to believe that if the thing were to do over again, it could not be obtained; & that if we give the least opening they will declare the treaty void. a warning amounting to that has been given to them, & an unusual kind of letter written by their minister to our Secretary of state direct. whatever Congress shall think it necessary to do, should be done with as little debate as possible; & particularly so far as respects the constitutional difficulty. I am aware of the force of the observations you make on the power given by the Constn to Congress to admit new states into the Union, without restraining the subject to the territory then constituting the US. but when I consider that the limits of the US. are precisely fixed by the treaty of 1783. that the constitution expressly declares itself to be made for the US. I cannot help believing the intention was to permit Congress to admit into the union new states which should be formed out of the territory for which & under whose authority alone they were then acting. I do not believe it was meant that they might recieve England, Ireland, Holland &c into it, which would be the case on your construction. when an instrument admits two constructions the one safe, the other dangerous, the one precise the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation where it is found necessary, than to assume it by a construction which would make our powers boundless. our peculiar1 security is in the possession of a written constitution. let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. if it is, then we have no constitution. if it has bounds, they can be no others than the definitions of the powers which that instrument gives. it specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. whatever of these enumerated objects is proper for a law, Congress may2 make the law. whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. nothing is more likely than that their enumeration of powers is defective. this is the ordinary case of all human works. let us go on then perfecting it, by adding by way of amendment to the constitution, those powers which time & trial shew are still wanting. but it has been taken too much for granted that by this rigorous construction the treaty power would be3 reduced to nothing. I had occasion once to examine it’s effect on the French treaty made by the old Congress, & found that out of thirty odd articles which that contained there were one, two, or three only which could not now be stipulated under our present constitution. I confess then I think it important in the present case to set an example against broad construction by appealing for new power to the people. if however our friends shall think differently, certainly I shall acquiesce with satisfaction, confiding that the good sense of our country will correct the evil of construction when it shall produce ill effects.—no apologies for writing or speaking to me freely are necessary. on the contrary nothing my friends can do, is so dear to me, & proves to me their friendship so clearly, as the information they give me of their sentiments & those of others on interesting points where I am to act, and where information & warning are so essential to excite in me that due reflection which ought to precede action. I leave this about the 21st. and shall hope the district court will give me an opportunity of seeing you. Accept my affectionate salutations & assurances of cordial esteem & respect.
RC (CLU-C); at foot of first page: “W. C. Nicholas”; PrC (DLC). Enclosure: James Monroe to Madison, 3 June (see Gallatin to TJ, 31 Aug.).
to our secretary of state direct: a packet of papers that the French government sent to Louis André Pichon in the care of Peter Augustus Jay included a letter from Talleyrand to Madison dated 12 Prairial (1 June). Pichon sent a deciphered copy of the letter to the State Department from Frederick, Maryland, with other papers on 30 Aug. In the communication to the secretary of state, the French foreign minister declared that the efforts of both parties in the Louisiana negotiation had produced a result that was favorable to each of the republics. Talleyrand reported that he had secured the first consul’s prompt ratification of the agreements—as desired by the American ministers—to give satisfaction to the United States as well as to allow the transfer of the ceded territory to move forward without delay. Barbé de Marbois had settled the details of the financial transaction with the Hope firm, Bonaparte approved that arrangement, and the French government was making Gallatin acquainted with the details. Talleyrand hoped that Madison would do everything in his power to bring the transaction to completion (Talleyrand to Madison, 12 Prairial Year 11, in DNA: RG 59, NL; Madison, Papers description begins William T. Hutchinson, Robert A. Rutland, J. C. A. Stagg, and others, eds., The Papers of James Madison, Chicago and Charlottesville, 1962- , 35 vols.; Sec. of State Ser., 1986- , 9 vols.; Pres. Ser., 1984- , 7 vols.; Ret. Ser., 2009- , 2 vols. description ends , Sec. of State Ser., 5:355-7; Robert R. Livingston to TJ, 2 June).
french treaty: the 1778 Treaty of Amity and Commerce between the United States and France (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931-48, 8 vols. description ends , 2:3-34).
1. TJ here canceled “happiness.”
2. Word interlined in place of “is to.”
3. TJ here canceled “abridged.”