From Edmund Pendleton
Edmundsbury Octr. 8. 1787.
The Governor in his return drop’d at the Bowling Green, yr. very kind favr. of the 20th. past1 covering the result of your long labours at Philadelphia, for both of which I thank you. I had heard of and lamented the withholding the Names of the two respectable Gentn. of our delegation,2 tho’ am yet Ignorant of the ground of their dissention; what ever it was, I cannot approve their Conduct. To expect individual or even State unanimity in Points of so great Magnitude and difficulty, was contrary to all experience: and to maintain ones Opinion by all the Arguments which reason and mental powers afford, is manly & becoming whilst the subject is in agitation & Suspense; but to yield to the decision of a Majority, when further Opposition can have no good, & may produce many bad effects, is not only commendable, but in my opinion an Individual duty. I was afraid that if they Published the reasons of their Conduct, as they would probably think necessary, it might create much dissentions in the State. I am told that what they have done & any thing they may do to justify it, is more likely to injure their own popularity, than prevent the adoption of the Plan, but of this I can form no Judgment of my own, except in the narrow circle I am confined to, wherein high & low run into approbation of the measure. I can’t help submitting it to your consideration, whether a speedy dispatch of it in Congress may not be Useful.
I have read the paper with great Attention, but without the Aid of any Judicious friend to confer with; however I mean to trouble you with my thoughts upon it, as they Occur, which, tho’ I do not flatter my self with a thought that they will be useful to you, will be doing on my part what you seem to have expected, when you did me the honour of sending it.
I began to read it with two Impressions on my mind, with which I think every reader of it should set out. 1st. That something was necessary to be done, and that a Plan, very far short of perfection, was greatly preferable to our present Condition, and which would probably have been considered as desperate, if the Convention had risen without doing anything. 2d. that in Governments as well as other things, perfection is unattainable, and indeed Attempts to approach it, by too much refinement, generally produce more mischief than good. I recollected the very sensible observations of Sr. Wm. Temple “That none was ever perfect, or free from very many & just exceptions. The Republics of Athens, Carthage & Rome, so renowned in the world, & which have furnished Story with the greatest Actions and persons upon the Records of time, were but long courses of disorder & vicissitude, perpetually rolling between the Oppressions of Nobles, the Seditions of the people, the Insolence of Soldiers, or Tyranny of Commanders. The very Ideas of Government have been liable to exceptions as well as their Actual frames & Constitutions. The Republic of Plato, the Principality of Hobbes, the Rotation of Oceana3 have all been Indicted & found guilty of many faults or great Infirmities. Nay the very kinds of Government have never yet been out of dispute, but equal faults imputed to them all. An Absolute Monarchy ruins the people; one Limited endangers the Prince; an Aristocracy is subject to Emulations of the great, and Oppressions of the poor; and a Democracy to Popular tumults & Convulsions.” His conclusion is “A perfect scheme of Government seems as endless and as useless a search as that of the Universal medicine or the Philosopher’s Stone.”4 And mine is that all which human wisdom is capable of on this great Occasion is to adopt the form most likely to co-incide with the genius of the People to be governed; to Preserve the great outlines and fundamentals of that form, and avoid, as far as may be, the natural infirmities, which experience has proved to be annexed to it.
A Republic was inevitably the American form, and it’s natural danger Popular Tumults & Convulsions. With these in view I read over the Constitution accurately & do not find a Trait of any Violation of the great Principles of the form, all Power being derived mediately or immediately from the People; No titles or Powers that are either heriditary or of long duration so as to become Inveterate; and the Laws & not the arbitrary Will of any Man, or body of men made the Rule of Government. The People, the Origin of Power, cannot Act personally, & can only exercise their Power by representation—the great bodies of both Fœdral & State Legislatures, are to consist of their immediate choice, and from that choice all other Powers are derived; The secretions required in the choice of the Fœdral Senate and President, seem admirably contrived to prevent Popular Tumults, as well as to preserve that Equilibrium to be expected from the Ballancing Power of the three branches. In The Presidents Power of Negation to the laws, the modification strikes out a happy medium between an Absolute Negative in a Single person, & having no stop, or Cheque upon laws too hastily passed, or the Offspring of Party or Faction. Such as upon a re-consideration, are approved by ⅔ ds. of Each House, ought to Pass independant of any other Power.
The President is indeed to be a great man, but ’tis only in shew to represent the fœdral dignity & Power, having no latent Prerogative, nor any Powers but such as are defined & given him by law. He is to be Commander in Chief of the Army & Navy, but Congress are to raise & provide for them, & that not for above two years at a time. He is to Nominate all Officers, but Congress must first Create the Offices & fix the Emoluments, and may discontinue them at pleasure, & he must have the consent of ⅔ ds. of the Senate to his nomination. Above all his tenure of Office is Short, & the Danger of Impeachment, a powerful restraint agt. abuse of Office. A Political Head and that adorned wth. powderd hair,5 seems as necessary & useful in Governmt., as that member so adorned in the natural body; and I have observed in the history of the united Netherlands, that their affairs always succeeded best, when they allowed their Stadtholder to exercise his Constitutional powers.
I was struck with an Objection to the Senate having been made the Executive Council; since having a Participation in two branches, they might Influence laws for creating unnecessary Offices, or giving extravagant Salaries to those necessary, & then fill them up with themselves, their families or dependts. & thought it best to have the three branches kept wholly distinct from each other. And as an Execut[iv]e Council was necessary, I cast about for their formation, & thought they might be found in the numbers voted for for President. But when I considered that the Objection has no force, but in the case of a General Corruption pervading the whole Legislative & Executive bodys, and that on such a Supposition it would admit of no remedy, but what was afforded by new Elections or by recurring to Revolution Principles; That in the House of Representatives, as well as the Incapacity of members of either House to be appointed to Offices created whilst they are members, there are considerable cheques on the Senate; and above all as the considerable expence of this Seperate Council is saved (and I am more afraid of expence than fraud) I became reconciled to the mode, as an evil which did not admit of a Remedy, that would not introduce a greater evil.
The like objection occurs to the Senates being made the Triers upon Impeachmts., as they therein Participate in the Judicial Powers, and it may be Added that in case of Impeachment Of the President for Mal Conduct by their advice, they will be a strange Tribunal to Judge of it; at the same time it will be objected to, as borrowed from the British form and approximating too nearly to the obnoxious power of the Lords. Tho’ I do not see any material reason for having taken this trial out of the Judiciary course, yet it is really not so exceptionable as it at first appears. The mode of Prosecution, as generally practiced, is not a favorite with me, being generally the Engine of Party contentions for Offices, and no matter how Seldom practiced. It is in the hands of the House of Representatives, who will not use it in the case Supposed, or if they do, and meet the obstruction, may yet resort to the Courts of Justice, as an Acquital would not bar that remedy—the assimilation to the Power of the Lords, is too futile to merit notice.
The line between the fœdral & State Powers, the most difficult part of the work, appears to me most happily drawn, and I much applaud that Spirit of Amity and concession which produced, and which I hope may continue to perfect it. In the Regulations of Commerce however, I shall hope not to see projects introduced for discouraging foreign Trade, or driving Us too soon into Manufactures, in favr. of wch. our Presses have groaned under labour’d nonsense in the course of this Summer. Trade & manufactures should both be free, and will make their way in proper time.
The restrictions of Paper emissions & unjust tender Laws are alone of value sufficient to outweigh all Objections to the System. In the exclusive right of Coining, I foresee great risque & expence in conveying Bullion & money between the Seat of Congress & the remote States, over-ballancing the fœdral Revenue, wch. seems the only reason for confining it. When Congress had fixed the Proportion of Alloy, the value of the coin, and other regulations to prevent Counterfeits, might not the States have been trusted wth. Coining subject to those Rules?
In Art. 1. S. 9. Clause 5th. are these words “Nor shall Vessels bound to, or from one State, be obliged to enter, clear or pay duties in another,” which do not appear sufficiently explicit.6 If it was intended to allow a free trade between the States without entry, clearance or duty, (wch. does not seem to be meant, tho’ the words, may bear that construction) will it not tend to defeat all Regulations of Commerce & Revenue? If, as I suppose, It was intended to reach the cases only of casually touching at a State Port they were not bound to, or passing through one State to get to their Ports in another, (as the Vessels of Maryland do thro’ ours in Navigating Chesapeake) there appears to want words of Restriction from trading, added to the exemption.
My last Criticism you will probably laugh at, tho’ it is really a Serious one wth. me. Why require an Oath from Public Officers, and yet interdict all Religious Tests, their only Sanction? Those hitherto adopted have been narrow & illiberal, because designed to preserve Established modes of Worship; But since a belief of a future State of Rewards & Punishments, can alone give consciensious Obligation to Observe an Oath, It would seem that Test should be required or Oaths Abolished.
It is time I had done with my triffling observations, wth. which & a thousand others more material, you had been sufficiently tired at Phila., I will only add my warmest thanks as an Individual, to the Authors of the work for their labours, & declare my unequivocal acceptance of it, with all it’s imperfections.
The Viset you mention of my two old friends from Orange,7 gave me infinite pleasure. We discussed the Politics of the day and the history of former times; We retraced the familiar Annecdotes of our lives, and in short spent the most agreable week I ever experienced; which I beleive increased the train they found me in of gaining strength & ease from my Complaints, wch. flatter me with hopes of being ab⟨le⟩ to Attend the approaching Courts.
You mention your right of Franking having ceased; I suppose you meant it only as a Member of Convention, & that yr. Congressional Privilege in that way subsists—otherwi⟨se⟩ yr. bargain in this Letter, will be still worse than I intended.
We understand a general Eligibility in Members to Our Convention & expec⟨t⟩ you will come from Congress (where important business will no doubt be Suspended) to make one of them. I wish you every felicity, being Dr. Sir with unreserved Esteem & regard Your very Affe. & obt. servt.
RC (owned by Richard Gilder, Jr., New York, N.Y., 1990). Docketed by JM. Extract printed in PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 10:188–89.
2. Virginia delegates George Mason and Edmund Randolph had refused to sign the proposed constitution.
3. Rotation in office was one of the governmental reforms urged by James Harrington in his 1656 blueprint for an English utopia, Oceana (J. G. A. Pocock, ed., The Political Works of James Harrington [Cambridge, 1977], pp. 69–72).
4. The quotations are from the essay “Of Popular Discontents” by Sir William Temple (The Works of Sir William Temple, Bart. [4 vols.; London, 1770], 3:38–39).
5. Pendleton crossed out “a full bottom’d” before, and “wig” after, “powderd” and interlined “hair.”
6. The quotation is from article 1, section 9, clause 6 of the U.S. Constitution.
7. James Madison, Sr., and Erasmus Taylor.