Washington, Feb. 21. ’29
Instead of your hearing from me early in the week, as, in my few lines of last week, I promised you should, the end of it has arrived & found me still delinquent. I have as yet completed but two copies of Mr Monroe’s paper, which go, in separate parcels, by this mail; they had best, I think, be sent to Mr Johnson & Mr Cabell: the former having been on the committee with Mr Monroe, the latter being the most likely to need it for use. Copies for the other members of the board, shall follow as soon as I can prepare them: the delay has been caused partly by procrastination, partly by indisposition--for I have not escaped the bad colds that have prevailed here, & mine was attended with a bad cough & some pain in the chest--and partly by the piece of work proving so much heavier than I, at first, imagined.
I also take the liberty of enclosing to you for Mr Randolph, copies of the letters to yourself & Mr Adams on the Presidential election written in ’97. The copy of the letter to you, was made in great haste; & if you can easily lay your hand on the original, I will beg you to take the trouble of comparing it. In one part of this letter the recurrence of the word species has an awkward effect: I have in one place written the word itself in its stead. Should you think it an improvement, & the liberty warrantable, please dash your pen through the species; if otherwise, through the itself. Two or three questions have presented themselves to my mind in relation to the expediency of publishing these letters. 1st. whether the two passages concerning pamphlets, although to us who knew him, perfectly consistent; will not present to other eyes an appearance of inconsistency & want of candor. 2dly. whether the remarks concerning Hamilton, are supported by either what is known to the world, or what will become so. Should these points appear to you sufficiently important to deserve the trouble, a simple suggestion to Mr R of your opinion of the expediency of publishing these letters, will probably decide the question.
My cold had prevented my paying any visits for several weeks; I broke up the ice however a few evenings ago, & have seen Mrs Cutts, who you may inform Mrs Madison, appears in better health than I recollect to have seen her do. She told me of your enquiry about the letter committed to my care, when I last took leave of you. I had seen a notice from the post office that although the great Mail for the north was made, early in the night, another packet would be put up, just before its departure, of such letters as were consigned to the letter box during the night. The stage which took us from the Steam boat, called at the post office, to leave the mail, previously to taking us to our lodgings; and, supposing there might be money in the letter, I got out that it might be put into the box with my own hands. It is very possible that some accident has happened to the extra mail of that morning, that has escaped the notice that would have been taken of a similar one happening to the main ma[il.] should you not, by this time, have heard of its receipt; please let me know, that the proper enquiry may be at once instituted.
Glancing at the Enquirer of this morning, I perceive that Mr Giles’s No 7 has a pendant in the No 1 of some other gentleman, who seems to be as far as the Governor, from that understanding of the object criticised, which is indispensable to render the criticism aught but despicable rigmarole. That this deficiency should exist in one of the people, is no just cause of surprize: but I confess it excited no little in my mind, to perceive so clearly from a hasty glance at two or three numbers of the adherent to the republican costume that he had not seized you, as the french say; and that, with regard to the train of thought in your mind of which your letter is the index, he was in a state of childish ignorance. That a newspaper booby should have so little discrimination as to fancy inconsistency between the doctrine that derives all the Federal power from the constitution alone, and the use, as evidence of the intention of the parties to the Constitution, of the fact that a certain power if not granted, is annihilated; is not to be wondered at: but that this should be the case with a veteran debater & renowned logician, is certainly prodigious.
The darkness in which Mr Giles has shewn his mind to be, in relation to the true principles of interpretation, has confirmed me in the idea that a just exposition of them would be among the most useful works that could be published in this country. I have accordingly determined on attempting something on the subject. My first idea was to give an exposition of these principles, & then, by a fair analysis of Mr G’s numbers, to show his ignorance of them. But Mr G’s own productions are too generally unpalatable to make it safe to connect truth with them; even in the way of contrast: and I now think of preparing an article for the Jurist a publication just commenced in Boston, to which I have been invite[d] to contribute. I propose to present the subject, in a commentary on the passage in the Constitution, which restricts the legislative power of the states in relation to contracts. On this constitutional point, I have lately heard of doctrines from the Supreme Court, which confound all my ideas on the Subject of Contracts; and in which, so far as my knowledge of those doctrines goes the Federal Judiciary have fallen as far short of the restriction really designed to be imposed on the states; as the same Judiciary have exceeded the[ir] own proper limits, in interfering with the Power exercised by the States, over Property: a subject over which I know of no constitutional qualification of that omnipotence, which, in relation thereto, is possessed by every independent community; & was possessed by these States previously to their entering into the compact.
Could you, without further trouble than that of merely noting them d[own] (for beyond this, I beg you will not think of going) refer me to what you will perceive by one of the enclosed papers, I mean by collateral evidences? This paper is the commencement of the article I have in contemplation, which I sketched a few [ ] ago, during a half hour of solitude in our parlor. The other contains some ideas on the subject of literal interpretation--a subject on which our Virginia politicians enjoy such a complacent security--which result from the views I intend to present of laws & the interpretation of laws: the application of these views, to the distinction on which our soi-disant metaphysicians love so much to dwell, between a constructive power, & one which is not constructive, results in showing, equally clearly to my mind at least, that it is a distinction without a difference. All powers are constructive; every passage in the Constitution, & in every other piece of written language presents this problem--and no passage presents any other--what intention was designed to be expressed thereby? The only difference is, that in regard to some portions of language, this problem—for reasons easily exposed—answers itself, as it were; and in regard to others, it requires more or less investigation.
The news, you doubtless get from Mrs Cutts, fresher than I can give it. Until yesterday—when, on my way to the capitol to hear the famous Dr Ely, Mr & Mrs Rives were so kind as to stop their carriage & take me in—I had not seen a member of Congress for several weeks. But there are two western gentlemen at this house, who are at the capitol every day; & by their means, I get sufficiently into the atmosphere, to be made sensible that the elements are not in a state of rest, nor likely to do aught but form themselves into new tempests to disturb the serene reign which has been so confidently counted on for the popular favorite. A cabinet consisting of Van Buren, Ingham, Eaton & Branch, will be rather a contrast to, than a realization of, the picture of a cabinet of extraordinary ability which the country generally has been, for years, habituating itself to the contemplation. Baldwin it is said, & there are many evidences of it, was brought on for the very purpose, or at least in the conclusive determination, to bring him in. And yet, for several days he has been dropped—the work, some say of Mr Calhoun; B. being a tariff man. It begins to be whispered that A. J. is no longer himself—that his roman energy is gone; & that he is to be a tool. Certainly, appearances are very singular: particularly in regard to the manner in which he suffers himself to be approached by the fellows who have been the dirtiest tools in his elevation. I heard this evening of a new office assumed by the Colleges of Electors: Some of these have taken on themselves to act as regal advisers, & to recommend a sweep of the decks within their particular sphere. [ ] appearances thus far, make it not impossible that the Nation will be made sick enough of its farmer soldier experiment. Mr Livingston arrived last night, however; and it is possible he may prove an efficacio[us] counsellor, & undo some of the work ascribed to aid-de-camp Eaton, and Duff Green.
Have you noticed how ungenerously acharné the Enquirer is, against Mr Adams? How different are the effects on different persons, of the same things? This very letter, against which the whole country is open-mouthed, is the first thing that has let me into Mr Adams’s mind; &, it has inspired me with much admiration for his moral & intellectual character.
Had I the prospect, even, of time, I would avoid presenting this hasty scrawl to your eyes. Let me not have to add to the reproach of having given it to be waded through, that of making you write a letter in return. Be so good only, as to enclose me back the two papers; &, when you have time, to make the shortest memorandum as to the sources where I am to apply for the probable intentions of the parties to the Constitution as to Contracts. Should I succeed in this subject, I may probably, afterwards take up that of property: and see whether, if the Supreme Court have improperly conceded in the one case, they have just as improperly usurped in the other. Has any thing ever occurred in our history, to give rise to the idea of conveying to a federal functionary any authority on this subject; or of, in any degree, tying up the hands of the States, in relation thereto. Accept for Mrs Madison & yourself, my usual adieux
N. P. Trist
The weather still very cold. Nothing like it known for 8 or 10 years. Wood at 10 dollars a cord. They commenced lending the fuel to-day, from the department, for the poor.
RC (ViHi: Nicholas P. Trist Album Book). Docketed by JM.