To Caleb Wallace
Orange Augt. 23d. 1785
Your favour of the 12th. of July was safely deliverd to me by Mr. Craig.1 I accept with pleasure your propos’d exchange of Western for Eastern intelligence and though I am a stranger to parental ties can sufficiently con[c]ieve the happiness of which they are a source to congratulate you on Your possession of two fine sons & a Daughter. I do not smile at the Idea of transplanting myself into your wilderness. Such a change of my abode is not indeed probable. Yet I have no local partialities which can keep me from any place which promises the greatest real advantages but If such a removal was not even possible I should nevertheless be ready to communicate, as you desire my Ideas towards a constitution of Government for the State in embryo.2 I pass over the general policy of the measure which calls for such a provision. It has been unanimously embraced by those who being most interested in it must have but consider’d it, & will I dare say be with equal unanimity acceded to by the other party which is to be consulted. I will first offer some general remarks on the Subject, & then answer your several queries.
1. The Legislative department ought by all means, as I think to include a Senate constituted on such principles as will give wisdom and steadiness to legislation. The want of these qualities is the grievance complained of in all our republics. The want of fidelity in the administration of power having been the grievance felt under most Governments, and by the American States themselves under the British Government. It was natural for them to give too exclusive an attention to this primary attribute. The Senate of Maryland with a few amendments is a good model. Trial has I am told verified the expectations from it. A Similar one made a part of our constitution as it was originally proposed but the inexperience & jealousy of our then Councils, rejected it in favour of our present Senate a worse could hardly have been substituted & yet bad as it is, it is often a useful bitt in the mouth of the house of Delegates.3 Not a single Session passes without instances of sudden resolutions by the latter of which they repent in time to intercede privately with the Senate for their Negative. For the other branch models enough may be found. Care ought however to be taken against its becoming to numerous, by fixing the number which it is never to exceed. The quorum, wages, and privileges of both branches ought also to be fixed. A majority seems to be the natural quorum. The wages of the members may be made payable for years to come in the medium value of wheat, for years preceeding as the same shall from period to period be rated by a respectable Jury appointed for that purpose by the Supreme Court. The privileges of the members ought not in my opinion to extend beyond an exemption of their persons and equipage from arrests during the time of their actual Service. If it were possible it would be well to define the extent of the Legislative power but the nature of it seems in many respects to be indefinite. It is very practicable however to enumerate the essential exceptions. The Constitution may expresly restrain them from medling with religion—from abolishing Juries from taking away the Habeus corpus—from forcing a citizen to give evidence against himself, from controuling the press, from enacting retrospective laws at least in criminal cases, from abridging the right of suffrage, from seizing private property for public use without paying its full Valu[e] from licensing the importation of Slaves, from infringing the Confederation &c &c.
As a further security against fluctuating & indegested laws the Constitution of New York has provided a Council of Revision. I approve much of such an institution & believe it is considerd by the most intelligent citizens of that state as a valuable safeguard both to public interests & to private rights.4 Another provision has been suggested for preserving System in Legislative proceedings which to some may appear still better. It is that a standing commtee composed of a few select & skilful individuals should be appointed to prepare bills on all subjects which they may judge proper to be submitted to the Legislature at their meetings & to draw bills for them during their Sessions. As an antido[te] both to the jealousy & danger of their acquiring an improper influence they might be made incapable of holding any other Office Legislative, Executive, or Judiciary. I like this Suggestion so much, that I have had thoughts of proposing it to our Assembly, who give almost as many proofs as they pass laws of their need of some such Assistance.
2 The Executive Department Though it claims the 2d place is not in my estimation entitled to it by its importance all the great powers which are properly executive being transferd to the Fœderal Government. I have made up no final opinion whether the first Magistrate should be chosen by the Legislature or the people at large or whether the power should be vested in one man assisted by a council or in a council of which the President shall be only primus inter pares.5 There are examples of each in the U. States and probably advantages & disadvantages attending each. It is material I think that the number of members should be small & that their Salaries should be either unalterable by the Legislature or alterable only in such manner as will not affect any individual in place. Our Executive is the worst part of a ba[d] Constitution. The Members of it are dependant on the Legislature not only for their wages but for their reputation and therefore are not likely to withstand usurpations of that branch; they are besides too numerous and expensive, their organization vaugue & perplexed & to crown the absurdi[ty] some of the members may without any new appointment continue in Office for life contrary to one of Articles of the Declaration of Right[s.]
3d The Judiciary Department merits every care. Its efficacy is Demonstrated in G. Brittain where it maintains private Right against all the corruptions of the two other departments & gives a reputation to the whole Government which it is not in itself entitled to. The main points to be attended to are 1. that the Judges should hold their places during good behavior. 2. that their Salaries should be either fixed like the wages of the Representatives or not be alterable so as to affect the Individuals in Office. 3 that their Salaries be liberal. The first point is obvious: without the second the independance aimed at by the first will be Ideal only: without the 3d. the bar will be superior to the bench which destroys all security for a Systematick administration of Justice. After securing these essential points I should think it unadvisable to descend so far into detail as to bar any future Modification of this department which experience may recommend. An enumeration of the principal courts with power to the Legislature to Institute inferior Courts may suffice. The Admiralty business can never be extensive in your situation and may be refer’d to one of the other Courts. With regard to a Court of Chancery as distinct from a Court of Law, the reasons of Lord Bacon on the affirmative side outweigh in my Judgment those of Lord Kaims on the other side.6 Yet I should think it best to leave this important question to be decided by future lights without tying the hands of the Legislature one way or the other. I consider our county courts as on a bad footing and would never myself consent to copy them into another constitution.
All the States seem to have seen the necessity of providing for Impeachments but none of them to have hit on an unexceptionable Tribunal. In some the trial is referd to the Senate in others to the Executive, in others to the Judiciary department. It has been suggested that a tribunal composed of members from each Department would be better than either and I entirely concur in their opinion. I proceed next to your queries.
1 “Whether is a representation according to number, or property, or in a joint proportion to both the most Safe? or is a representation by counties preferable to a more equitable mode that will be difficult to adjust?” Under this question may be consider’d 1. the right of Suffrage. 2 the mode of suffrage. 3 the plan of representation. As to the 1. I think the extent which ought to be given to this right a matter of great delicacy and of critical Importance. To restrain it to the landholders will in time exclude too great a proportion of citizens; to extend it to all citizens without regard to property, or even to all who possess a pittance may throw too much power into hands which will either abuse it themselves or sell it to the rich who will abuse it. I have thought it might be a good middle course to narrow this right in the choice of the least popular, & to enlarge it in that of the more popular branch of the Legislature. There is an example of this Distinction in N. Carolina if in none of the States.7 How it operates or is relished by the people I cannot say. It would not be surprising if in the outset at least it should offend the sense of equallity which re[i]gns in a free Country. In a general vein I see no reason why the rights of property which chiefly bears the burden of Government & is so much an object of Legislation should not be respected as well as personal rights in the choice of Rulers. It must be owned indeed that property will give influence to the holder though it should give him no legal priviledges and will in generall be safe on that as well as other Accounts, expecially if the business of Legislation be guarded with the provisions hinted at. 2 as to the mode of suffrage I lean strongly to that of the ballott, notwithstanding the objections which be against it. It appears to me to be the only radical cure for those arts of Electioneering which poison the very fountain of Liberty. The States in which the Ballott has been the Standing mode are the only instances in which elections are tolerably chaste and those arts in disgrace. If it should be thought improper to fix this mode by the constitution I should think it at least necessary to avoid any constitutional bar to a future adoption of it.*8 3 By the plan of representation I mean 1. the classing of the Electors 2 the proportioning of the representatives to each class. The first cannot be otherwise done than by geographical description as by Counties. The second may esily be done in the first instance either by comprizing within each county an equal number of electors; or by proportioning the number of representatives of each county to its number of electors. The dificulty arises from the disproportionate increase of electors in different Counties. There seem to be two methods only by which the representation can be equalized from time to time. The 1 is to change the bounds of the counties. The 2d to change the number of representatives allotted to them respectavely, as the former would not only be most troublesome & expensive, but would involve a variety of other adjustments. The latter method is evidently the best. Examples of a Constitutional provision for it exists in several of the States. In some it is to be executed periodically in others pro re nata. The latter seems most accurate and very practicable. I have already intimated the propriety of fixing the number of representatives which ought never to be exceeded. I should suppose 150 or even 100 might safely be made the ne plus ultra for Kentuckey.
2 “Which is to be preferd an Anual, Trienniel, or Septennial Succession to Offices or frequent elections without limitations in choice or that the Officers when chosen should continue quamdiu se bene gesserint?” The rule ought no doubt to be different in the different Departments of power. For one part of the Legislature Annual Elections will I suppose be held indispensably though some of the ablest Statesmen & soundest Republicans in the U States are in favour of triennial. The great danger in departing from Annual elextions in this case lies in the want of some other natural term to limit the departure. For the other branch 4 or 5 Years may be the period. For neither branch does it seem necessary or proper to prohibit an indefinite reeligibility.9 With regard to the Executive if the elections be frequent & particularly, if made as to any member of it by the people at large a reeligibility cannot I think be objected to. If they be unfrequent, a temporary or perpetual incapacitation according to the degree of unfrequency at least in the case of the first Magistrate may not be amiss. As to the Judiciary department enough has been said & as to the Subordinate officers civil & Military, nothing need be said more than that a regulation of their appointments may under a few restrictions be safely trusted to the Legislature.
3. “How far may the same person with propriety be employed in the different departments of Government in an infant Country where the counsel of every individual may be needed?[”] Temporary deviations from fundamental principles are always more or less dangerous. When the first pretext fails, those who become interested in prolonging the evil will rarely be at a loss for other pretexts. The first precedent too familiarizes the people to the irregularity, lessens their veneration for those fundamental principles, & makes them a more easy prey to Ambition & self Interest. Hence it is that abuses of every kind when once established have been so often found to perpetuate themselves. In this caution I refer cheifly to an improper mixture of the three great departments within the State. A Delegation to Congress is I conceive compatible with either.
4 “Should there be a periodical review of the Constitution? Nothing appears more eligible in theory nor has sufficient trial perhaps been yet made to condemn it in practise. Pensylvania has alone adopted the expedient. Her citizens are much divided on the subject of their constitution in general & probably on this part of it in particular I am inclind to think though am far from being certain, that it is not a favourite part even with those who are fondest of their Constitution. Another plan has been thought of which might perhaps Succeed better and would at the same time be a safeguard to the equilibrium of the constituent Departments of Government. This is that a Majority of any two of the three departments should have authority to call a plenipotentiary convention whenever they may think their constitutional powers have been Violated by the other Department or that any material part of the Constitution needs amendment. In your situation I should think [it] both imprudent & indecent not to leave a door open for at least one revision of your first Establishment; imprudent because you have neither the same resources for supporting nor the same lights for framing a good establishment now as you will have 15 or 20 Years hence; indecent because an handfull of early sett[l]ers ought not to preclude a populous Country from a choice of the Government under which they & their Posterity are to live. Should your first Constitution be made thus temporary the objections against an intermediate union of officers will be proportionably lessen’d. Should a revision of it not be made thus necessary & certain there will be little probability of its being ever revised. Faulty as our Constitution is as well with regard to the Authority which formed it as the manner in which it is formed the Issue of an experiment has taught us the difficulty of amending it; & Although the issue might have proceeded from the unseasonableness of the time yet it may be questioned whether at any future time the greater depth to which it will have stricken its roots will not counterballance any more auspicious circumstances for overturning it.
5 & 6 “Or will it be better unalterably to fix some leading Principles in Government and make it consistant for the Legislature to introduce such changes in lessor matters as may become expedient? can censors be provided that will impartially point out differences in the Constitutions & the Violations that may happen.[”] Answers on these points may be gatherd from what has been already said.
I have been led to offer my sentiments in this loose forms rather than to attempt a delineation of such a plan of Government as would please myself not only by my Ignorance of many local circumstances & opinions which must be consulted in such a work but also by the want of sufficient time for it. At the recei[p]t of your letter I had other employment and what I now write is in the midst of preparations for a Journey of business which will carry me as far as Philadelphia at least & on which I shall set out in a day or two.
I am sorry that it is not in my power to give you some satisfactory information concerning the Mississippi. A Minister from Spain has been with Congress for some time & is authorised as I understand to treat on what ever subjects may concern the two nations. If any explanations or propositions have passed between him & the Minister of Congress, they are as yet on the list of Cabinett Secrets. As soon as any such shall be made public & come to my knowledge I shall take the first opportunity of transmitting them. Wishing you & your family all happiness I am Dr Sir Yours friend & Servant
J Madison Jr
The Constitutions of the several States were printed in a small Volume a year or two ago by order of Congs.10 A perusal of them need not be recommended to you. Having but a single copy I cannot supply you. It is not improbable that you may be already possessed of one. The Revisall of our laws by Jefferson, Withe & Pendleton beside their Value in improving the legal code may suggest some things worthy of being attended to in framing a Constitution.
Tr (DLC). This copy in an unknown hand of the missing original Ms is headed, “To Jno. Brown (Kentucky).” The Tr is docketed by JM, “To Brown Jno.” However, Gaillard Hunt saw this was an error and he made the correction in Madison, Writings (Hunt ed.) description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , II, 166 n.
1. Probably the Reverend Elijah Craig of Orange County, who seems to have visited Kentucky before he finally settled there in 1786 (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , I, 183 n. 7).
3. The Maryland Senate was chosen by county electors who met every five years and elected fifteen senators, nine from the western shore and six from the eastern counties. JM disliked the Virginia constitutional provision for a 24-seat Senate wherein a fourth of the members were rotated out of office annually. The plan Jefferson had proposed in 1776 created a Senate of at least 15 senators but no more than 50, who held office for six-year terms on a triennial rotation with reelection forbidden (Poore, Federal and State Constitutions, I, 822–23; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , I, 348–49, 358–59). Surely even JM was not in favor of Jefferson’s first thought on the subject—a senate elected for life (ibid., I, 341).
4. The New York Constitution (Art. III) created a “Council of Revision” consisting of the governor, chancellor, and supreme court, which reviewed all pending legislation “about to be passed into laws.” After a bill passed it was again presented to this council and a reconsideration could be ordered. Bills thus designated as “improper to the said council” became law only if passed by a two-thirds majority of both houses (Poore, Federal and State Constitutions, II, 1332). During the Federal Convention (21 July 1787), JM spoke out for a “Revisionary check on the Legislature” in terms similar to the New York Council (Madison, Convention Notes, p. 340).
5. JM worried with this question for another two years but went to the Federal Convention convinced that a legislative body should not choose “the first Magistrate.” By July 1787 he believed such a system “would agitate & divide the legislature so much that the public interest would materially suffer by it” (Farrand, ed., Records of the Federal Convention, II, 109).
6. JM’s belief that “the reasons of Lord Bacon … outweigh … those of Lord Kaims [Kames]” is an allusion to Bacon’s separation of common law cases from equity matters (“Ordinances” in James Spedding et al., eds., The Works of Francis Bacon [7 vols.; London, 1857–59], VII, 401, 762). Kames, in his Principles of Equity (1760), commented on the English practice but favored “the union of the powers of both [common law and equity causes] in one tribunal as in the Supreme Civil Court of Scotland” (Joseph Parkes, A History of the Court of Chancery … [London, 1828], pp. 333–34).
7. The North Carolina Constitution of 1776 allowed all taxpaying freemen “of the age of twenty-one years” who had a year’s residence in the state to vote for delegates to its House of Commons. Voters for state senators were also required to own (in the county where they voted) fifty acres of land six months prior to election day (Poore, Federal and State Constitutions, II, 1411).
8. JM’s footnote alluded to the New York constitutional provision for printed or written ballots “after the termination of the present war” for state representatives and senators. Poore notes that a 1778 act in New York “introduced the practice of voting by ballot for governor and lieutenant-governor only, but retained the viva voce method” for legislators. The constitution also provided for abolition of the ballot system if a fair trial proved it inferior to “voting viva voce” (ibid., II, 1333–34).
9. JM was all too aware of Article V of the Virginia Declaration of Rights, which recommended that public officials “should, at fixed periods, be reduced to a private station.” JM was no friend of this idea, which in practice had caused him to move from the Council of State to Congress and back to the House of Delegates, in the space of seven years.