To Edmund Pendleton
Philada. Feby. 7. 1796
My dear Sir
Your favor of Jany. 6., owing to failures of the Mail South of Baltimore, did not come to hand within the usual time; and subsequent delays in the communication consultation & decision of Mr. Giles & myself, on the manner of publishing & applying your observations on the carriage tax,1 have brought down the return of my thanks for your favor to the present date. I read with real pleasure the paper you put into the hands of Mr. Giles; which is unquestionably a most simple & lucid view of the subject, and well deserving the attention of the Court which is to determine on it. The paper will be printed in the newspapers in time for the Judges to have the benefit of it. I did not find that it needed any of those corrections which you so liberally committed to my hand. It has been thought unnecessary to prefix your name; but Mr. Giles will let an intimation appear along with the remarks, that they proceed from a quarter that claims attention to them. It is said that both the Judges & the Attorney Genl. have expressed a wish that the question should be argued on both sides at the Bar; but as the ordinary motive does not operate on the side of the Defendant, it is not certain that any professional appearance for him will take place.2 It is perhaps better that the cause should rest on the printed arguments & on the discernment of the Bench, than that it should be espoused by junior & unskilful volunteers. There never was a question on which my mind was more satisfied; and yet I have very little expectation that it will be viewed by the Court in the same light it is by me.*
The British Treaty in its final form as ratified by both parties has not yet been laid before the House of Reps. The delay is accounted for by the copy only & not the original of the British Ratification havg. been recd. I am sorry that so much weight is allowed to forms. My advice to the P. wd. have been, to have opened the actual State of the Business in his Speech, & to have communicated all the documents relating to it, to the Legislature. A different opinion has prevailed; & nothing is more uncertain than the moment when the Treaty will be laid on the Table for our consideration. In the meantime there is no apparent disposition in a majority either to apply for it, or to take it up informally, on its general notoriety; and the name of the P. is every where used with the most wonderful success, by the Treaty partisans, in subduing the popular objections to that instrument. No where has this policy been exerted with so much effect, as in N. England, as is shewn by the proceedings of the Legislatures of N. Hamshire & Massachussetts. The manner in which the latter has treated the proposed amendments of Virginia is as unworthy on the part of Mass: as it is unmerited on that of her sister. It speaks an influence which can not be friendly to either.
The Treaty with Spain is not yet arrived, nor is that with Algiers. The contents of both are unknown. There can be little doubt that the former contains some beneficial arrangements on the subject of the Mississippi. The countenance of English affairs grows more & more lowering. Among other signs truly alarming to that country, the Parliamt. are allowing a bounty amounting to 2/6 Sterl: a bushel on the importation of foreign Wheat. The accounts from France subsequent to the establishmt. of her Constitution are favorable to internal order & tranquility; & of course to her prospects on every side.
Since the knowledge of the English Bounty, Flour has taken a fresh start. It is now at abt. 14 dollrs. & a further rise is expected. For other domestic intelligence, I must refer to the Newspapers which I presume you occasionally see, & one of which is inclosed. I beg you to offer my best respects to Col. Taylor, & to accept the same yourself. With the truest esteem & attachment I am Dr. Sr. Yr. Obedt friend & set
Js. Madison Jr
RC (DLC). Docketed by Pendleton.
1. On 11 Feb. Benjamin Franklin Bache’s Philadelphia Aurora General Advertiser published an article asserting the unconstitutionality of the carriage tax by “a gentleman at the head of the Judiciary Department of the State in which he resides, and whose legal talents have long been as conspicuous, as were his exertions in favour of the Constitution, at the time of its adoption.” On 16 Dec. 1795 the House had appointed a committee to consider revision of the act imposing the carriage tax, which JM had long opposed. He advised and lent a book to Jared Ingersoll, one of the plaintiff’s counsel in Hylton v. U.S., which tested the constitutionality of the tax. The U.S. Supreme Court’s decision in that case on 8 Mar. 1796 was the first that upheld the constitutionality of a federal law. On 22 Mar. Virginia congressman Anthony New reported a bill that increased the tax, which Washington signed into law on 28 May (JM to Pendleton, 8 Jan. 1795, PJM description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (1 vol. to date; Charlottesville, Va., 1984—). description ends , 15:438 and n. 1; Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 4th Cong., 1st sess., 149, 799, 1330; Ingersoll to JM, 9 and 14 Feb. 1796; 3 Dallas description begins A. J. Dallas, Reports of Cases Ruled and Adjudged in the Several Courts of the United States, and of Pennsylvania (4 vols.; Philadelphia, 1790–1807). description ends 171; U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:478–82).
2. After the U.S. circuit court in Richmond had given a divided opinion on the constitutionality of the carriage tax in June 1795, the defendant, Daniel Lawrence Hylton, showed no interest in taking the case to the Supreme Court. He consented, on 25 Jan. 1796, to leave the conduct of the case to federal authorities, but since this agreement was not filed in the Supreme Court until 1 Mar. 1796, it was uncertain before the case began whether Hylton would be represented by counsel (Julius Goebel, Jr., et al., eds., The Law Practice of Alexander Hamilton: Documents and Commentary [5 vols.; New York, 1964–81], 4:314–15, 331).
3. JM was probably referring to a report, submitted to the House of Representatives by Alexander Hamilton on 2 Feb. 1795, pointing to a defect in the carriage tax legislation. The law had exempted carriages “usually and chiefly employed in husbandry, or for the transporting or carrying of goods, wares, merchandise, produce or commodities,” but furnished “no summary mode for determining what carriages [were] within the exempting description.” As Hamilton noted, “every disputed case must be the subject of a suit in all the legal forms,” and he suggested that the House provide a “remedy consistently with a due reference, in the last resort, to the judiciary authority” (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:374; ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Finance, 1:350).