To Richard Cutts
Montpellier Mar. 14. 1818
As it appears from your letter of the 5th.1 that Mr. Gideon adheres to his plan of publishing the 2 pamphlets in the same volumes with the Federalist, and desires a corrected copy of the one written by me, I have thought it best to send one. Be so good as to let it be put into his hands. I have limited the corrections to errors of the press and of the transcriber; and to a few cases in which the addition of a word or two seemed to render the meaning more explicit. There are passages to which a turn a little different might have been conveniently given; particularly that speaking of Treaties as laws, which might have been better guarded against a charge of inconsistency with the doctrine maintained on another occasion, and which probably would have been so guarded after the elaborate2 investigation of the Constitutional doctrine occasioned by Mr. Jay’s Treaty.3 The Reasoning however in the pamphlet is not affected by the question of consistency; and as the Author of Pacificus is charged with the want of it, I have chosen rather to let the passage stand as it was first published, than to give it what might be considered a retrospective meaning. Intelligent readers will be sensible that the scope of the argument did not lead to a critical attention to constitutional distinctions properly called forth on other occasions. If you think it worth while you may give Mr. Gideon a hint of these observations. Yrs.
RC (MHi); draft (DLC). RC docketed by Cutts. Minor differences between the copies have not been noted.
1. Letter not found.
2. “Accurate” in draft.
3. JM argued in “Helvidius” number 1 that the power to make treaties was “materially different from mere executive power,… as having more affinity to the legislative than to the executive character” (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 15:70). In support of this statement, he wrote that treaties “have the force and operation of laws, and are to be a rule for the courts in controversies between man and man, as much as any other laws. They are even emphatically declared by the constitution to be ‘the supreme law of the land’” (ibid., 15:71).
The elaboration of the doctrine occasioned by the Jay treaty may be the fifth point made in JM’s 10 Mar. 1796 speech in the U.S. House of Representatives where he argued that legislation necessarily required Congress to deliberate on the merits of a treaty (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 16:261–62). The inconsistency that so bothered JM here may refer to his remarks in the 1788 Virginia Ratifying Convention respecting the Mississippi question, which assured the delegates that the new House of Representatives would have little influence over treaties, as compared with the Senate (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 11:137).