James Madison Papers
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From James Madison to James Monroe, 23 February 1820

To James Monroe

Montpellier Feby. 23. 1820

Dear Sir

I received yours of the 19th. on Monday. Genl. Brown, who returned from Monticello on that evening, has been since with me, till 10 OClock today. Your letter found me indisposed from exposure to a cold wind without due precaution; and I have continued so. I write now with a fever on me. These circumstances will account for both the delay & the brevity in complying with your request.

The pinch of the difficulty, in the case stated, seems to be in the words “for ever,” coupled with the interdict relating to the Territory North of Lat: 36°. 30.°° If the necessary import of these words be, that they are to operate as a condition on future States admitted into the Union, and as a restriction on them after admission, they seem to encounter, indirectly, the arguments which prevailed in the Senate for an unconditional admission of Missouri. I must conclude therefore from the assent of the Senate to the words, after the strong vote, on constitutional grounds, against the restriction on Missouri, that there is some other mode of explaining them in their actual application.

As to the right of Congs. to apply such a restriction during the Territorial periods, it depends on the clause specially providing for the management of those subordinate Establishments.

On one side, it naturally occurs that the right, being given from the necessity of the case, and in suspension of the great principle of self-Govt; ought not to be extended farther, nor continued longer, than the occasion might fairly require.

On the other side, it cannot be denied, that the Constitutional phrase “to make all rules &c.” as expounded by uniform practice, is somewhat of a ductile nature, and leaves much to Legislative discretion.

The questions to be decided seem to be 1. whether a territorial restriction, be an assumption of illegimate power, or, 2. a misuse of legitimate power: and if the latter only, whether the injury threatened to the nation from an acquiescence in the misuse, or from a frustration of it, be the greater. On the 1st. point there is certainly room for difference of opinion; tho’ for myself I must own that I have always leaned to the belief that the restriction was not within the true scope of the constitution. On the alternative presented by the 2d. point, there can be no room with the cool & candid, for blame on those, acquiescing in a conciliatory course; the demand for which was deemed urgent, and the course itself deemed not irreconcileable with the Constitution.

This is the hasty view I have taken of the subject. I am aware that it may be suspected of being influenced by the habit of a guarded construction of Constitutional Powers. And I have certainly felt all the influence that could justly flow from a conviction, that an uncontrouled dispersion of the slaves, now within the U. S., was not only best for the nation, but most favorable for the slaves also, both as to their prospects of emancipation, and as to their condition in the mean time.

The inflammatory conduct of Mr. K.1 surprizes every one. His general warfare agst. the slaveholding States, and his efforts to disparage the securities derived from the Constitution, were least of all to have been looked for. I have noticed less of recurrence to cotemporary expositions of the Charter, than was to have been expected from the zeal & industry of the Champions in debate. The proceedings of the Virga. Convention have been well sifted: But those of other States ought not to have been overlooked. The Speeches of Mr. King in Massts.2 & of Mr. Hamilton in N. York3 shew the ground on which they vindicated, particularly, the compound rule of Representation in Congs. And doubtless there are many other evidences of the way of thinking then prevalent, on that & other articles, equally the result of a sense of equity, and a spirit of mutual concession. Respectfully & affectionately Yours.

James Madison

RC (DLC: Monroe Papers); draft (DLC). RC docketed by Monroe. Minor differences between the copies have not been noted.

1Rufus King.

2King had defended the mechanism of the three-fifths clause in the determination of representation and taxation at the Massachusetts Ratifying Convention of 1788, arguing that “it was the language of America” (Debates, Resolutions and Other Proceedings of the Convention of the Commonwealth of Massachusetts … 1788 [Boston, 1808; Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 15516], 63).

3In his speech of 20 June 1788 before the New York Ratifying Convention, Alexander Hamilton pointed out the efficacy of the three-fifths clause, which was “one result of the spirit of accommodation, which governed the [Constitutional] Convention; and without this indulgence, no union could have possibly been formed” (The Debates and Proceedings of the Convention of the State of New-York. … [New York, 1788; Evans 21310], 11, 21, 25–26).

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