From Alexander White
Bath 16th. August 1788
I retired to this place to obtain a little rest, but find so great a proportion of the Company came for diversion, that my Views are nearly frustrated. A rainy Day has afforded me an opportunity of giving you the trouble of opening this, the trouble of reading it will depend on yourself after observing the Signature. I have frequently been honored with your conversation from which I conceive I have profited; A sufficient reason for attempting to introduce a Correspondence. I have nothing agreeable to communicate unless it may be that the Anti Federalists in this part of the World (with two or three exceptions) profess their Satisfaction at the adoption of the New Goverment. I cannot express the pleasure I feel in viewing the fair Prospect—and if I could see our State Goverment properly fixed, and the administration of Justice placed on a good foundation I have not another political wish. I formerly opposed a change of Goverment, not because I thought the present a perfect System, but because I thought its general principles were good, and that a change would relax the Sinews of Goverment already too feeble. I am not sure I was altogether wrong—but several circumstances now concur in evincing the necessity of a change, more particularly the late conduct of our Judges1—for supposing with them that the Constitution is paramont the Ordinary Legislature, it is possible, that wise and good men may differ in the construction of some parts of it—the Assembly may pass an Act which they conceive perfectly consistent with the Constitution, the Judges may determine it inconsistent. Who is to decide the Contest? If the Judges opinion is to prevail, it places them above the Law, establishes an Oligarchy, vests absolute power in 15 men who hold their places during life, and over whom the People have no controul. Much safer may it be left to the Assembly—they are the immediate representatives of the People, and should they pass an Act inconsistent with the principles of the Constitution in the opinion of the Community at large, the Members concurring in the Act would be displaced at the next election, and the evil removed in the course of a year. “But the Judiciary ought to be independent of the Legislature.” And the Legislature I presume ought to be independent of the Judiciary. By the independence of the Judges I understand their holding their Offices for life, and their exemption from Legislative punishment. It is their duty to expound the Laws and to give Judgement according to their true sense and meaning—but that they should have a right to execute or not to execute at their Will and Pleasure a clear express Statute, is I believe a novelty in Politicks, the consequences of which may not be easily foreseen. I cannot agree that our present Constitution is above the power of the Ordinary Legislature. True it was formed by great and good men, but they were not infallible neither were they chosen for the purpose of forming a permanent Constitution, much less an unalterable one. On what then is the position founded? That the great principles of Liberty should be established by a Constitution unalterable by the Ordinary Legislature I think is right, but at the same time, it appears to me absolutely necessary, that some mode should be provided for remedying the defects of such Constitution as experience may bring them to light—but I do not mean to enlarge on the subject. I only wish to know whether you think the ensuing Session will be a proper time to attempt the measure. My doubts arise from the agitated State of mens minds occasioned by the late change of Goverment, the influence of Mr Henry in the present Assembly—the small number of men of abilities who are likely to support the measure—and a doubt whether there is a Prospect of your being in the Assembly within a short period. With Sentiments of great esteem I am Dear Sir Your most Obt. Servt
RC (DLC). Docketed by JM.
1. White alluded to the protest of the judges of the Virginia Court of Appeals against the new district court law (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 402 n. 2).