To Thomas Jefferson
Shortly before the Philadelphia convention adjourned, JM confided to Jefferson his opinion that the proposed Constitution would “neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments” (6 Sept. 1787 [partly in code]). The letter printed below, running to seventeen manuscript pages, contains JM’s detailed explanation of that opinion and reveals that the man who later became an indefatigable publicist in support of the new Constitution was in fact profoundly disappointed with the results of the convention. JM doubted the workability of the plan agreed upon at Philadelphia because it lacked the one ingredient that in his view was essential for establishing the supremacy of the central government and for protecting the private rights of individuals: a power vested in the national legislature to negative, or veto, state laws.
Unable to convince his colleagues at Philadelphia of the necessity of this veto power, JM knew that Jefferson was likewise not favorably disposed to lodge such a power in the hands of the central government. “Primâ facie I do not like it,” Jefferson had remarked of the negative in his letter to JM of 20 June 1787. “It fails in an essential character, that the hole & the patch should be commensurate. But this proposes to mend a small hole by covering the whole garment.” Because of the central importance of this prerogative in his scheme for a well-ordered confederacy, JM must have read these harsh comments with some displeasure. His response to Jefferson’s criticism was a carefully reasoned defense of the negative, in effect a separate essay (an “immoderate digression,” JM called it) within the letter, that drew upon his research into the history of confederations and restated his theory of the extended federal republic. This theory JM later embodied in The Federalist, Nos. 10 and 51, but “Publius,” not being required to defend a general veto power over state legislation, did not refer to the negative.
Indeed, because “Publius” did not need to discuss the negative, JM’s essays in The Federalist are an incomplete statement of his political thought. One must turn to this letter to Jefferson to observe the full scope of his ideas. Here for the first time he made clear the complementary role of the negative in his republican theory. JM had introduced the idea of a negative power in letters to Jefferson, Randolph, and Washington before the Federal Convention met, but he did not at that time explain why the central government, armed with this veto power over state laws, would act as a “disinterested & dispassionate umpire in disputes between different passions & interests in the State” without becoming an engine of tyranny (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 384). He provided that explanation in this letter to Jefferson, in which he undertook to prove that “private rights will be more secure under the Guardianship of the General Government than under the State Governments.” JM developed this argument by means of a full exposition of his theory of the extended republic. A government of extended jurisdiction, composed of representatives of a multitude of diverse interests that would constantly check each other, would not likely fall into the hands of a majority “united by a common interest or passion.” It followed that such a government, immune from the virus of tyranny by the majority, could safely be entrusted with the negative and thereby control that virus at the state level where it was most rampant.
To JM the Constitution, without the negative, was only a partial reform and thus probably doomed to failure. It was only a slight improvement over the Articles of Confederation—”a feudal system of republics” rather than “a Confederacy of independent States.” It was not enough that the Constitution embodied his theory of the extended republic, which could only help to prevent injustice at the federal level. The real source of injustice, as JM repeatedly emphasized, was to be found at the state level, and the only effective barrier to the policies of oppressive majorities there was a federal veto on state laws. A constitution that did not vest the central government with this prerogative could not effectively provide justice, which JM believed to be the true end of republican government.
JM made his own copy of that part of the letter dealing with the negative, an indication that he considered it to be an important statement of his political thought. It is not known when JM made this extract, but the firm handwriting suggests that he might well have made the copy contemporaneously, perhaps during the week between the writing and sending of the letter. Although it is now among the Jefferson Papers (DLC), the recipient’s copy of this letter, along with JM’s other letters to Jefferson, was returned to JM after Jefferson’s death. The letter was at Montpelier in the fall of 1834 when Nicholas P. Trist made a long extract from it, covering everything relating to the Constitution. Trist, whose wife was Jefferson’s granddaughter, was at that time searching through Jefferson’s papers “for materials to put the measures of ’98–’99 in their true light, and thus to vindicate his memory & that of his co-laborers from the deep reproach of having given birth to the doctrine of Nullification as now understood.” Trist requested and was given permission to consult JM’s papers at Montpelier for the same purpose (Trist to JM, 20 and 29 Aug. 1834 [ViHi]; JM to Trist, 25 Aug. 1834, Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , IV, 354).
New York Octr. 24. 1787.
My two last, though written for the two last Packets, have unluckily been delayed till this conveyance. The first of them was sent from Philada. to Commodore Jones in consequence of information that he was certainly to go by the Packet then about to sail. Being detained here by his business with Congress, and being unwilling to put the letter into the mail without my approbation which could not be obtained in time, he detained the letter also. The second was sent from Philada. to Col. Carrington, with a view that it might go by the last packet at all events in case Commodore Jones should meet with further detention here. By ill luck he was out of Town, and did not return till it was too late to make use of the opportunity. Neither of the letters were indeed of much consequence at the time, and are still less so now. I let them go forward nevertheless as they may mention some circumstances not at present in my recollection, and as they will prevent a chasm in my part of [illegible] correspondence which I have so many motives to cherish by an exact punctuality.
Your favor of June 20. has been already acknowledged. The last Packet from France brought me that of August 2d. I have recd. also by the Mary Capt. Howland the three Boxes for W.H. B.F. and myself.1 The two first have been duly forwarded. The contents of the last are a valuable addition to former literary remittances and lay me under additional obligations, which I shall always feel more strongly than I express. The articles included for Congress have been delivered & those for the two Universities and for General Washington have been forwarded, as have been the various letters for your friends in Virginia and elsewhere. The parcel of rice referred to in your letter to the Delegates of S. Carolina has met with some accident. No account whatever can be gathered concerning it. It probably was not shipped from France. Ubbo’s book I find was not omitted as you seem to have apprehended.2 The charge for it however is, which I must beg you to supply. The duplicate vol. of the Encyclopedie, I left in Virginia, and it is uncertain when I shall have an opportunity of returning it. Your Spanish duplicates will I fear be hardly vendible. I shall make a trial wherever a chance presents itself. A few days ago I recd. your favor of the 15 of Augst. via L’Orient & Boston. The letters inclosed along with it were immediately sent on to Virga.
You will herewith receive the result of the Convention, which continued its Session till the 17th. of September.3 I take the liberty of making some observations on the subject which will help to make up a letter, if they should answer no other purpose.
It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States. No proposition was made, no suggestion was thrown out, in favor of a partition of the Empire into two or more Confederacies.
It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States. A voluntary4 observance of the federal law by all the members, could never be hoped for. A compulsive5 one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general, a scene resembling much more a civil war, than the administration of a regular Government.
Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in the principle and proportion of representation.
This ground-work being laid, the great objects which presented themselves were 1. to unite a proper energy in the Executive and a proper stability in the Legislative departments, with the essential characters of Republican Government. 2. to draw a line of demarkation which would give to the General Government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them. 3. to provide for the different interests of different parts of the Union. 4. to adjust the clashing pretensions of the large and small States.6 Each of these objects was pregnant with difficulties. The whole of them together formed a task more difficult than can be well concieved by those who were not concerned in the execution of it. Adding to these considerations the natural diversity of human opinions on all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.
The first of these objects as it respects the Executive, was peculiarly embarrassing. On the question whether it should consist of a single person, or a plurality of co-ordinate members, on the mode of appointment, on the duration in office, on the degree of power, on the re-eligibility, tedious and reiterated discussions took place. The plurality of co-ordinate members had finally but few advocates. Governour Randolph was at the head of them. The modes of appointment proposed were various, as by the people at large—by electors chosen by the people—by the Executives of the States—by the Congress, some preferring a joint ballot of the two Houses—some a separate concurrent ballot allowing to each a negative on the other house—some a nomination of several canditates [sic] by one House, out of whom a choice should be made by the other. Several other modifications were started. The expedient at length adopted seemed to give pretty general satisfaction to the members. As to the duration in office, a few would have preferred a tenure during good behaviour—a considerable number would have done so, in case an easy & effectual removal by impeachment could be settled. It was much agitated whether a long term, seven years for example, with a subsequent & perpetual ineligibility, or a short term with a capacity to be re-elected, should be fixed. In favor of the first opinion were urged the danger of a gradual degeneracy of re-elections from time to time, into first a life and then a heriditary tenure, and the favorable effect of an incapacity to be reappointed, on the independent exercise of the Executive authority. On the other side it was contended that the prospect of necessary degradation, would discourage the most dignified characters from aspiring to the office, would take away the principal motive to the faithful discharge of its duties—the hope of being rewarded with a reappointment, would stimulate ambition to violent efforts for holding over the constitutional term—and instead of producing an independent administration, and a firmer defence of the constitutional rights of the department, would render the officer more indifferent to the importance of a place which he would soon be obliged to quit for ever, and more ready to yield to the incroachmts. of the Legislature of which he might again be a member. The questions concerning the degree of power turned chiefly on the appointment to offices, and the controul on the Legislature. An absolute7 appointment to all offices—to some offices—to no offices, formed the scale of opinions on the first point. On the second, some contended for an absolute negative, as the only possible mean of reducing to practice, the theory of a free Government which forbids a mixture of the Legislative & Executive powers. Others would be content with a revisionary power to be overruled by three fourths of both Houses. It was warmly urged that the judiciary department should be associated in the revision. The idea of some was that a separate revision should be given to the two departments—that if either objected two thirds; if both three fourths, should be necessary to overrule.
In forming the Senate, the great anchor of the Government, the questions as they came within the first object turned mostly on the mode of appointment, and the duration of it. The different modes proposed were, 1. by the House of Representatives 2. by the Executive, 3. by electors chosen by the people for the purpose. 4. by the State Legislatures. On the point of duration, the propositions descended from good-behavior to four years, through the intermediate terms of nine, seven, six, & five years. The election of the other branch was first determined to be triennial, and afterwards reduced to biennial.
The second object, the due partition of power, between the General & local Governments, was perhaps of all, the most nice and difficult. A few contended for an entire abolition of the States; some for indefinite power of Legislation in the Congress, with a negative on the laws of the States: some for such a power without a negative: some for a limited power of legislation, with such a negative: the majority finally for a limited power without the negative. The question with regard to the Negative underwent repeated discussions, and was finally rejected by a bare majority. As I formerly intimated to you my opinion in favor of this ingredient, I will take this occasion of explaining myself on the subject. Such a check on the States appears to me necessary 1. to prevent encroachments on the General authority. 2. to prevent instability and injustice in the legislation of the States.8
1. Without such a check in the whole over the parts, our system involves the evil of imperia in imperio. If a compleat supremacy some where is not necessary in every Society, a controuling power at least is so, by which the general authority may be defended against encroachments of the subordinate authorities, and by which the latter may be restrained from encroachments on each other. If the supremacy of the British Parliament is not necessary as has been contended, for the harmony of that Empire; it is evident I think that without the royal negative or some equivalent controul, the unity of the system would be destroyed. The want of some such provision seems to have been mortal to the antient Confederacies, and to be the disease of the modern. Of the Lycian Confederacy little is known. That of the Amphyctions is well known to have been rendered of little use whilst it lasted, and in the end to have been destroyed by the predominance of the local over the federal authority. The same observation may be made, on the authority of Polybius, with regard to the Achæan League. The Helvetic System scarcely amounts to a Confederacy, and is distinguished by too many peculiarities, to be a ground of comparison. The case of the United Netherlands is in point. The authority of a Statholder, the influence of a Standing army, the common interest in the conquered possessions, the pressure of surrounding danger, the guarantee of foreign powers, are not sufficient to secure the authority and interests of the generality, agst. the antifederal tendency of the provincial sovereignties. The German Empire is another example. A Hereditary chief with vast independent resources of wealth and power, a federal Diet, with ample parchment authority, a regular Judiciary establishment, the influence of the neighbourhood of great & formidable Nations, have been found unable either to maintain the subordination of the members, or to prevent their mutual contests & encroachments.9 Still more to the purpose is our own experience both during the war and since the peace. Encroachments of the States on the general authority, sacrifices of national to local interests, interferences of the measures of different States, form a great part of the history of our political system.10 It may be said that the new Constitution is founded on different principles, and will have a different operation. I admit the difference to be material. It presents the aspect rather of a feudal system of republics, if such a phrase may be used, than of a Confederacy of independent States. And what has been the progress and event of the feudal Constitutions? In all of them a continual struggle between the head and the inferior members, until a final victory has been gained in some instances by one, in others, by the other of them. In one respect indeed there is a remarkable variance between the two cases. In the feudal system the sovereign, though limited, was independent; and having no particular sympathy of interests with the great Barons, his ambition had as full play as theirs in the mutual projects of usurpation. In the American Constitution The general authority will be derived entirely from the subordinate authorities. The Senate will represent the States in their political capacity; the other House will represent the people of the States in their individual capac[it]y. The former will be accountable to their constituents at moderate, the latter at short periods. The President also derives his appointment from the States, and is periodically accountable to them. This dependence of the General, on the local authorities, seems effectually to guard the latter against any dangerous encroachments of the former: Whilst the latter, within their respective limits, will be continually sensible of the abridgment of their power, and be stimulated by ambition to resume the surrendered portion of it. We find the representatives of Counties and corporations in the Legislatures of the States, much more disposed to sacrifice the aggregate interest, and even authority, to the local views of their Constituents: than the latter to the former. I mean not by these remarks to insinuate that an esprit de corps will not exist in the national Government or that opportunities may not occur, of extending its jurisdiction in some points. I mean only that the danger of encroachments is much greater from the other side, and that the impossibility of dividing powers of legislation, in such a manner, as to be free from different constructions by different interests, or even from ambiguity in the judgment of the impartial, requires some such expedient as I contend for. Many illustrations might be given of this impossibility. How long has it taken to fix, and how imperfectly is yet fixed the legislative power of corporations, though that power is subordinate in the most compleat manner? The line of distinction between the power of regulating trade and that of drawing revenue from it, which was once considered as the barrier of our liberties, was found on fair discussion, to be absolutely undefinable. No distinction seems to be more obvious than that between spiritual and temporal matters. Yet wherever they have been made objects of Legislation, they have clashed and contended with each other, till one or the other has gained the supremacy. Even the boundaries between the Executive, Legislative & Judiciary powers, though in general so strongly marked in themselves, consist in many instances of mere shades of difference. It may be said that the Judicial authority under our new system will keep the States within their proper limits, and supply the place of a negative on their laws. The answer is, that it is more convenient to prevent the passage of a law, than to declare it void after it is passed; that this will be particularly the case, where the law aggrieves individuals, who may be unable to support an appeal agst. a State to the supreme Judiciary; that a State which would violate the Legislative rights of the Union, would not be very ready to obey a Judicial decree in support of them, and that a recurrence to force, which in the event of disobedience would be necessary, is an evil which the new Constitution meant to exclude as far as possible.
2. A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights.11 The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism. I am persuaded I do not err in saying that the evils issuing from these sources contributed more to that uneasiness which produced the Convention, and prepared the public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects. A reform therefore which does not make provision for private rights, must be materially defective. The restraints agst. paper emissions, and violations of contracts are not sufficient. Supposing them to be effectual as far as they go, they are short of the mark. Injustice may be effected by such an infinitude of legislative expedients, that where the disposition exists it can only be controuled by some provision which reaches all cases whatsoever. The partial provision made, supposes the disposition which will evade it. It may be asked how private rights will be more secure under the Guardianship of the General Government than under the State Governments, since they are both founded on the republican principle which refers the ultimate decision to the will of the majority, and are distinguished rather by the extent within which they will operate, than by any material difference in their structure. A full discussion of this question would, if I mistake not, unfold the true principles of Republican Government, and prove in contradiction to the concurrent opinions of theoretical writers, that this form of Goverment, in order to effect its purposes, must operate not within a small but an extensive sphere. I will state some of the ideas which have occurred to me on this subject. Those who contend for a simple Democracy, or a pure republic, actuated by the sense of the majority, and operating within narrow limits, assume or suppose a case which is altogether fictitious. They found their reasoning on the idea, that the people composing the Society, enjoy not only an equality of political rights; but that they have all precisely the same interests, and the same feelings in every respect. Were this in reality the case, their reasoning would be conclusive. The interest of the majority would be that of the minority also; the decisions could only turn on mere opinion concerning the good of the whole, of which the major voice would be the safest criterion; and within a small sphere, this voice could be most easily collected, and the public affairs most accurately managed. We know however that no Society ever did or can consist of so homogeneous a mass of Citizens. In the savage State indeed, an approach is made towards it; but in that State little or no Government is necessary. In all civilized Societies, distinctions are various and unavoidable. A distinction of property results from that very protection which a free Government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest. These classes may again be subdivided according to the different productions of different situations & soils, & according to different branches of commerce, and of manufactures. In addition to these natural distinctions, artificial ones will be founded, on accidental differences in political, religious or other opinions, or an attachment to the persons of leading individuals. However erroneous or ridiculous these grounds of dissention and faction, may appear to the enlightened Statesman, or the benevolent philosopher, the bulk of mankind who are neither Statesmen nor Philosophers, will continue to view them in a different light. It remains then to be enquired whether a majority having any common interest, or feeling any common passion, will find sufficient motives to restrain them from oppressing the minority. An individual is never allowed to be a judge or even a witness in his own cause. If two individuals are under the biass of interest or enmity agst. a third, the rights of the latter could never be safely referred to the majority of the three. Will two thousand individuals be less apt to oppress one thousand, or two hundred thousand, one hundred thousand? Three motives only can restrain in such cases. 1. a prudent regard to private or partial good, as essentially involved in the general and permanent good of the whole. This ought no doubt to be sufficient of itself. Experience however shews that it has little effect on individuals, and perhaps still less on a collection of individuals, and least of all on a majority with the public authority in their hands. If the former are ready to forget that honesty is the best policy; the last do more. They often proceed on the converse of the maxim: that whatever is politic is honest. 2. respect for character. This motive is not found sufficient to restrain individuals from injustice, and loses its efficacy in proportion to the number which is to divide the praise or the blame. Besides as it has reference to public opinion, which is that of the majority, the Standard is fixed by those whose conduct is to be measured by it. 3. Religion. The inefficacy of this restraint on individuals is well known. The conduct of every popular Assembly, acting on oath, the strongest of religious ties, shews that individuals join without remorse in acts agst. which their consciences would revolt, if proposed to them separately in their closets. When Indeed Religion is kindled into enthusiasm, its force like that of other passions is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of Religion, and whilst it lasts will hardly be seen with pleasure at the helm. Even in its coolest state, it has been much oftener a motive to oppression than a restraint from it. If then there must be different interests and parties in Society; and a majority when united by a common interest or passion can not be restrained from oppressing the minority, what remedy can be found in a republican Government, where the majority must ultimately decide, but that of giving such an extent to its sphere, that no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit. In a large Society, the people are broken into so many interests and parties, that a common sentiment is less likely to be felt, and the requisite concert less likely to be formed, by a majority of the whole. The same security seems requisite for the civil as for the religious rights of individuals. If the same sect form a majority and have the power, other sects will be sure to be depressed. Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles. It must be observed however that this doctrine can only hold within a sphere of a mean extent. As in too small a sphere oppressive combinations may be too easily formed agst. the weaker party; so in too extensive a one, a defensive concert may be rendered too difficult against the oppression of those entrusted with the administration. The great desideratum in Government is, so to modify the sovereignty as that it may be sufficiently neutral between different parts of the Society to controul one part from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the entire Society. In absolute monarchies, the Prince may be tolerably neutral towards different classes of his subjects, but may sacrifice the happiness of all to his personal ambition or avarice. In small republics, the sovereign will is controuled from such a sacrifice of the entire Society, but is not sufficiently neutral towards the parts composing it. In the extended Republic of the United States, The General Government would hold a pretty even balance between the parties of particular States, and be at the same time sufficiently restrained by its dependence on the community, from betraying its general interests.12
Begging pardon for this immoderate digression I return to the third object abovementioned, the adjustment of the different interests of different parts of the Continent. Some contended for an unlimited power over trade including exports as well as imports, and over slaves as well as other imports; some for such a power, provided the concurrence of two thirds of both House were required; Some for such a qualification of the power, with an exemption of exports and slaves, others for an exemption of exports only. The result is seen in the Constitution. S. Carolina & Georgia were inflexible on the point of the slaves.
The remaining object created more embarrassment, and a greater alarm for the issue of the Convention than all the rest put together. The little States insisted on retaining their equality in both branches, unless a compleat abolition of the State Governments should take place; and made an equality in the Senate a sine qua non. The large States on the other hand urged that as the new Government was to be drawn principally from the people immediately and was to operate directly on them, not on the States; and consequently as the States wd. lose that importance which is now proportioned to the importance of their voluntary compliances with the requisitions of Congress, it was necessary that the representation in both Houses should be in proportion to their size. It ended in the compromise which you will see, but very much to the dissatisfaction of several members from the large States.
It will not escape you that three names only from Virginia are subscribed to the Act. Mr. Wythe did not return after the death of his lady. Docr. MClurg left the Convention some time before the adjournment. The Governour and Col. Mason refused to be parties to it. Mr. Gerry was the only other member who refused. The objections of the Govr. turn principally on the latitude of the general powers, and on the connection established between the President and the Senate. He wished that the plan should be proposed to the States with liberty to them to suggest alterations which should all be referred to another general Convention, to be incorporated into the plan as far as might be judged expedient. He was not inveterate in his opposition, and grounded his refusal to subscribe pretty much on his unwillingness to commit himself, so as not to be at liberty to be governed by further lights on the subject. Col. Mason left Philada. in an exceeding ill humour indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection. His other objections are to the substitution of the Senate in place of an Executive Council & to the powers vested in that body—to the powers of the Judiciary—to the vice President being made President of the Senate—to the smallness of the number of Representatives—to the restriction on the States with regard to ex post facto laws—and most of all probably to the power of regulating trade, by a majority only of each House. He has some other lesser objections. Being now under the necessity of justifying his refusal to sign, he will of course muster every possible one. His conduct has given great umbrage to the County of Fairfax, and particularly to the Town of Alexandria. He is already instructed to promote in the Assembly the calling a Convention, and will probably be either not deputed to the Convention, or be tied up by express instructions. He did not object in general to the powers vested in the National Government, so much as to the modification. In some respects he admitted that some further powers would have improved the system. He acknowledged in particular that a negative on the State laws, and the appointment of the State Executives ought to be ingredients; but supposed that the public mind would not now bear them, and that experience would hereafter produce these amendments.
The final reception which will be given by the people at large to the proposed System can not yet be decided. The Legislature of N. Hampshire was sitting when it reached that State and was well pleased with it. As far as the sense of the people there has been expressed, it is equally favorable. Boston is warm and almost unanimous in embracing it. The impression on the Country is not yet known. No symptoms of disapprobation have appeared. The Legislature of that State is now sitting, through which the sense of the people at large will soon be promulged with tolerable certainty. The paper money faction in Rh. Island is hostile. The other party zealously attached to it. Its passage through Connecticut is likely to be very smooth and easy. There seems to be less agitation in this13 State than any where. The discussion of the subject seems confined to the newspapers. The principal characters are known to be friendly. The Governour’s party which has hitherto been the popular & most numerous one, is supposed to be on the opposite side; but considerable reserve is practised, of which he sets the example. N. Jersey takes the affirmative side of course. Meetings of the people are declaring their approbation, and instructing their representatives. Penna. will be divided. The City of Philada., the Republican party, the Quakers, and most of the Germans espouse the Constitution. Some of the Constitutional leaders, backed by the western Country will oppose. An unlucky ferment on the subject in their Assembly just before its late adjournment has irritated both sides, particularly the opposition, and by redoubling the exertions of that party may render the event doubtful. The voice of Maryland I understand from pretty good authority, is, as far as it has been declared, strongly in favor of the Constitution. Mr. Chase is an enemy, but the Town of Baltimore which he now represents, is warmly attached to it, and will shackle him as far as they can. Mr. Paca will probably be, as usual, in the politics of Chase. My information from Virginia is as yet extremely imperfect. I have a letter from Genl. Washington which speaks favorably of the impression within a circle of some extent; and another from Chancellor Pendleton which expresses his full acceptance of the plan, and the popularity of it in his district. I am told also that Innis and Marshall are patrons of it. In the opposite scale are Mr. James Mercer, Mr. R. H. Lee, Docr. Lee and their connections of course, Mr. M. Page according to Report, and most of the Judges & Bar of the general Court. The part which Mr. Henry will take is unknown here. Much will depend on it. I had taken it for granted from a variety of circumstances that he wd. be in the opposition, and still think that will be the case. There are reports however which favor a contrary supposition. From the States South of Virginia nothing has been heard. As the deputation from S. Carolina consisted of some of its weightiest characters, who have returned unanimously zealous in favor of the Constitution, it is probable that State will readily embrace it. It is not less probable, that N. Carolina will follow the example unless that of Virginia should counterbalance it. Upon the whole, although, the public mind will not be fully known, nor finally settled for a considerable time, appearances at present augur a more prompt, and general adoption of the Plan than could have been well expected.14
When the plan came before Congs. for their sanction, a very serious effort was made by R. H. Lee & Mr. Dane from Masts. to embarrass it. It was first contended that Congress could not properly give any positive countenance to a measure which had for its object the subversion of the Constitution under which they acted. This ground of attack failing, the former gentleman urged the expediency of sending out the plan with amendments, & proposed a number of them corresponding with the objections of Col. Mason. This experiment had still less effect. In order however to obtain unanimity it was necessary to couch the resolution in very moderate terms.
Mr. Adams has recd. permission to return, with thanks for his Services. No provision is made for supplying his place, or keeping up any represention there. Your reappointment for three years will be notified from the Office of F. Affrs.15 It was made without a negative eight states being present. Connecticut however16 put in a blank ticket the sense of that state having been declared against embassies. Massachusets betrayed some scruple on like ground. Every personal consideration was avowed & I beleive with sincerity to have militated against these scruples. It seems to be understood that letters to & from the foreign Ministers of the U.S. are not free of Postage: but that the charge is to be allowed in their accounts.
The exchange of our French for Dutch Creditors has not been countenanced either by Congress or the Treasury Board. The paragraph in your last letter to Mr. Jay, on the subject of applying a loan in Holland to the discharge of the pay due to the foreign Officers has been referred to the Board since my arrival here. No report has yet been made. But I have little idea that the proposition will be adopted. Such is the state & prospect of our fiscal department that any new loan however small, that should now be made, would probably subject us to the reproach of premeditated deception. The balance of Mr. Adams’ last loan will be wanted for the interest due in Holland, and with all the income here, will, it is feared, not save our credit in Europe from further wounds. It may well be doubted whether the present Govt. can be kept alive thro’ the ensuing year, or untill the new one may take its place.
Upwards of 100,000 Acres of the surveyed lands of the U.S. have been disposed of in open market. Five million of unsurveyed have been sold by private contract to a N. England Company, at ⅔ of a dollar per acre, payment to be made in the principal of the public securities. A negociation is nearly closed with a N. Jersey Company for two million more on like terms, and another commenced with a Company of this City for four million. Col. Carrington writes more fully on this subject.17
You will receive herewith the desired information from Alderman Broome in the case of Mr. Burke. Also the Virga. Bill on crimes & punishments. Sundry alterations having been made in conformity to the sense of the House in its latter stages, it is less accurate & methodical than it ought to have been.18 To these papers I add a Speech of Mr. C. P. on the Missippi. business. It is printed under precautions of secrecy, but surely could not have been properly exposed to so much risk of publication. You will find also among the Pamplets & papers I send by Commodore Jones, another printed speech of the same Gentleman.19 The Musæum, Magazine,20 & Philada. Gazettes, will give you a tolerable idea of the objects of present attention.
The summer crops in the Eastern & Middle States have been extremely plentiful. Southward of Virga. They differ in different places. On the whole I do not know that they are bad in that region. In Virginia the drought has been unprecedented, particularly between the falls of the Rivers & the Mountains. The Crops of Corn are in general alarmingly short. In Orange I find there will be scarcely subsistence for the inhabitants. I have not heard from Albemarle. The crops of Tobo. are every where said to be pretty good in point of quantity; & the quality unusually fine. The crops of wheat were also in general excellent in quality & tolerable in quantity.
Novr. 1. Commodore21 Jones having preferred another vessel to the packet, has remained here till this time. The interval has produced little necessary to be added to the above. The Legislature of Massts. has it seems taken up the Act of the Convention, and have appointed or probably will appoint an early day for its State Convention. There are letters also from Georgia which denote a favorable disposition. I am informed from Richmond that the New Election-law from the Revised Code produced a pretty full House of Delegates, as well as a Senate, on the first day. It had previously had equal effect in producing full meetings of the freeholders for the County elections. A very decided majority of the Assembly is said to be zealous in favor of the New Constitution. The same is said of the Country at large. It appears however that individuals of great weight both within & without the Legislature are opposed to it. A letter I just have from Mr. A. Stuart, names Mr. Henry, Genl. Nelson, W. Nelson, the family of Cabels, St. George Tucker, John Taylor and the Judges of the Genl. Court except P. Carrington. The other opponents he describes as of too little note to be mentioned, which gives a negative information of the Characters on the other side. All are agreed that the plan must be submitted to a Convention.
We hear from Georgia that that State is threatened with a dangerous war with the Creek Indians. The alarm is of so serious a nature, that law-martial has been proclaimed, and they are proceeding to fortify even the Town of Savannah. The idea there, is that the Indians derive their motives as well as their means from their Spanish neighbours. Individuals complain also that their fugitive slaves are encouraged by East Florida. The policy of this is explained by supposing that it is considered as a discouragement to the Georgians to form settlements near the Spanish boundaries.
There are but few States on the spot here which will survive the expiration of the federal year; and it is extremely uncertain when a Congress will again be formed. We have not yet heard who are to be in the appointment of Virginia for the next year. With the most affectionate attachment I remain Dear Sr. Your Obed friend & servant
Js. Madison Jr.
RC (DLC: Jefferson Papers); partial FC (DLC); partial Tr (ViU): There are numerous corrections and deletions on the seventeen-page RC, most of which appear to have been made contemporaneously, except for two clearly added later (see nn. 13 and 21, below). The RC was docketed by Jefferson. Some forty alterations on the RC, which are mainly stylistic, have been noted in Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950——). description ends , XII, 284–86. The FC, in JM’s hand, is an abbreviated portion of the letter headed “Extract of a letter to Mr. J——son—dated Ocr 24. 1787.” The Tr is endorsed by Nicholas P. Trist: “(This Extract comprises the whole of what relates to the Constitution.).” Trist also explained: “Copied from the original at Montpellier, (V[irginia] J[efferson] T[rist] & C[ornelia] J[efferson] R[andolph] & M[artha] J[efferson] R[andolph] assisting) by N. P. T. Oct. 1. ’34.” Italicized words, unless otherwise noted, are those encoded by JM using the code Jefferson sent him on 11 May 1785. RC decoded interlinearly by Jefferson. Enclosures not found.
1. “W.H.” was William Hay; “B.F.” was Benjamin Franklin.
3. The final report of the Federal Convention. No copy known definitely to have belonged to Jefferson has been found (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950——). description ends , XII, 149–50 n.).
4. Underlined by JM.
5. Underlined by JM.
7. Underlined by JM.
8. JM began his extract with a slight rewording of the preceding sentence: “A negative in the Genl. Govt. on laws of States necessary 1. to prevent encroachts. on Genl. Govt. 2. instability & injustice in State legislation.” See JM to Jefferson, 19 Mar. 1787 (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 318), for JM’s earlier “opinion in favor of this ingredient.”
9. JM’s discussion of ancient and modern confederacies in his speech of 19 June 1787 at the Philadelphia convention went largely unreported. JM presented a full treatment of this subject, based on his Notes on Ancient and Modern Confederacies (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 4–22), in The Federalist, Nos. 18, 19, and 20.
10. JM incorporated the following observations on the greater danger of encroachments by the states on the general government into The Federalist, Nos. 45 and 46. See also JM’s first speech of 21 June 1787.
11. JM took the following observations on the necessity of a negative on state laws from the concluding section of his memorandum, Vices of the Political System (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (10 vols. to date; Chicago, 1962——). description ends , IX, 354–57). The same source also supplied much of the text for JM’s first speech of 6 June 1787. After being removed from the context of defending the power to negative state laws, these observations were recast and incorporated into The Federalist, Nos. 10 and 51.
12. JM’s extract ends here.
13. At a later time JM placed an asterisk here and wrote “*N. York” at the bottom of the page.
14. The Trist extract, which begins with the third paragraph of the letter, ends here.
15. Jefferson had been reappointed minister to France on 12 Oct. (JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 665).
16. JM wrote “74,” the code for “however,” but Jefferson decoded it as “73”—”notw[i]thst[an]d[in]g.”
17. See Edward Carrington to Jefferson, 23 Oct. 1787, Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950——). description ends , XII, 256–57.
18. See Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950——). description ends , II, 492–504, 505–6 n.; XII, 284 n.
20. The American Museum and the Columbian Magazine, both of Philadelphia.
21. At a later time JM placed an asterisk here and wrote “*Paul” in the margin.