Montpellier Feby 17. 1825
I recd yesterday your two letters of the 12 & 15 & return the letter from Mr Cabell inclosed in one of them. I approve the course you have in view of obtaining an eventual meeting of the Visitors.
The Judicial appointment of Mr Barbour will, I understand, be accepted; and as it is in the road to the Court of Appeals, lessens the chance of him for the University. I am sorry you hear nothing of Mr Preston, especially as information is immediately wanted, & the channel for obtaining it so circuitous. If Mr Breckenridge should attend the Called Meeting of the Visitors, and have the personal knowledge requisite, the miscarriage of your letter to him may be unimportant: but his attendance is very uncertain.
Chancellor Tucker had occurred to me. But finding that he was adding to his legal salary the profits of a Law School, I took for granted that he was out of our reach. I recollected also that he had become a convert to the constitutionality of Canals &c in favor of which he drew up the Report of a Committee of Congress, some years ago, a copy of which he sent me, but which I can not now find. In other respects he adhered, I believe to the Virginia Creed of which he had been a warm advocate. What his political sentiments are at present I know not. It seems a strange, but it is a certain fact, that there are several instances of distinguished politicians who reject the general heresies of federalism, most decidedly the amalgamating magic in the terms “General Welfare”, who yet admit the authority of Congress as to Roads & Canals, which they squeeze out of the enumerated Articles. In truth the great temptation of “Utility” brought home to local feelings, is the most dangerous snare for Constitutional Orthodoxy; and I am not sure that the Judiciary branch of the Government is not a safer expositor of the power of Congress, than Congress will be when backed & even pushed on by their Constituents, as in the Canal & the Missouri cases. Were the unauthorized schemes of internal improvement as disagreeable to a majority of the people & of the States, as they are deemed advantageous, who can doubt the different reasonings & result that would be within the walls of Congress? The Will of the Nation being omnipotent for right, is so far wrong also; and the will of the Nation being in the Majority, the Minority must submit to that danger of oppression as an evil infinitely less than the danger to the whole nation from a will independent of it. I consider the question as to Canals &c as decided, therefore, because sanctioned by the Nation under the permanent influence of benefit to the major part of it, and if not carried into practice, will owe its failure to other than Constitutional obstacles.
I have thought it proper that you should be apprized of what is here communicated with respect to Mr Tucker. It will be for consideration, how far, with that flaw, if there be no other material one, it may not be better to avail the University of his talents & reputation, to which may be added, as I believe, great amiableness of temper, than to run the risk of being driven to an appointment less satisfactory either on the score of talents or of fitness . The chance I fear is bad of making one unexceptionable in every respect
DLC: Papers of James Madison.