Title: From James Madison to James Madison, Sr., 6 September 1788
From: Madison, James, Sr.
To: Madison, James

Hond SirN. York Sepr. 6. 1788.
I forward this by the mail expecting it will be at Fredg. in time for Mr. A. Shepherd who left this a day or two ago. Nothing of much consequence has occurred since my last. The current intelligence you will find in the inclosed gazettes. The Antifederalists are every where exerting themselves for an early Convention. The circular letter from this State, and the rejection of N. Carolina, give them great spirits. Virginia, I suppose from the temper of the present Legislature will co-operate in the plan.
Congress have not yet settled the place for the meeting of the new Govt. It is most probable that the advocates for N. York who form at present the greater number, will prevail. In that case, altho’ I think it a very unreasonable thing for the Southn. & Western parts of the Union, the best face must be put on it.
I have not yet been able to determine whether Anthony is still in Philada. I am inclined to believe he is not. Indeed some circumstances wd almost tempt me to think he never has been there. On this supposition John must have practised a gross deception on us. He could have no motive for this unless it were a spite to Billey, which I fancy he entertained. But the deception could hardly promise a gratification that would prompt it. He is still very sick, and his recovery not very probable.
I find on enquiry that the loan office Certificates which I told you I had only mislaid, not lost, must go to N. Carolina for settlement. If an oppy. offers I shall accordingly send them thither unless otherwise directed by you. I have not yet seen Mr. Morris & have therefore not been able to do any thing in the affair of Mr. Triplett. Remember me affectly to my mother & the family, and believe me yr. dutiful son
Js. Madison Jr.


Title: To James Madison from Tench Coxe, 10 September 1788
From: Coxe, Tench
To: Madison, James

Dear SirPhilada. Sept. 10th. 1788
You were good enough to subscribe for a set of the letters of Publius at my request. I have recd. the Books, but as there was to be a remainder of subscription paid I shall be obliged to you, if in some future letter, you will note the amount. It has been affirmed to me with some confidence that a part of those papers were written by you. It would give me great pleasure before I read the work again to be informed, which they were, if it could be done without trouble. Your delicacy alone I presume, will stand in the way of indulging me in this request, as the great Object of the work has recd. your uniform, and open support, and you may be assured the circumstance will never escape from me.
We have been made uneasy here by an effort of our opposition, promoted by some of their friends in the adjacent states, to influence the elections for state & federal representatives, not only in Pennsa. but in those states also who elect about this Season of the Year. The paper enclosed will shew you how the matter has been conducted. It is probable it may be of use to republish it, as the facts are carefully stated, and it is addressed to the Union at large. From the temper of a part of the new York opposition it may have some effect there, and indeed there has been such a run upon Amendments, that a little from the friends of the Constitution may not be mal apropos. I mean the paper signed a fedl. Centinel.
Our present legislature, whose time expires on the 2d. tuesday of October will proceed to elect the Senators, if the ordinance comes forward, which I presume will be the case from a hint of Mr. Fitzsimons hastily this morning. The next house I hope will be federal, but the present are certainly so. Mr. Morris will be one of our Senators, and is certainly an able man in commerce, finance & some other very important matters. The other is uncertain. On the federal Side are several candidates—but one of them in my opinion has any pretensions to the appointment, and he has very respectable Qualifications. I do not know that his election is certain as I could wish.
The arrangement of the offices is a matter of the greatest Consequence to the permanent establishment of the Government. One of immense importance has pressed itself much upon my mind. The Minister for domestic affairs. Permit me to express a sentiment upon which, as I told you once before upon a point of delicacy, I do not wish an Observation from you. I really think there are qualities admitted in your character, which render you peculiarly adapted to that situation. I will only mention that of being free from partiality to your State. Virginia I am sure has in you a faithful friend, but not a blind one that cannot see his duty to the Union for the interference of his affection to his State. I must really entreat your pardon for this freedom, but do assure you if ever a step of mine was dictated by a conviction that it was necessary to promote the Government, tis the liberty I have now taken.
The question about the place of first meeting is likely to issue I find in favor of New York. I confess I wish Philada. may not any longer procrastinate the issuing of the ordinance. Tis much to be lamented that so much time has been spent, & that the most favorable & proper position has not been taken, but tis too serious a matter to hazard the Government by Delay for any such Consideration. I am, dear Sir, with the most respectf. Esteem your obedt. hum. Servant
Tench Coxe


Title: Virginia Delegates to Board of Treasury, 12 September 1788
From: Virginia Delegates
To: Board of Treasury

Gentlemen,New York Sepr. 12. 1788
We shall transmit to the Governor of Virginia for the consideration of the Executive the papers which you have inclosed us respecting the double settlement of Doctor George Draper with the U. S. and the state of Virginia for the same service in the late Army: But we conceive it proper to apprise you Gentlemen that the attention of the Executive will be called to the Resolutions of Congress of the 13th. of June 1781 in the following words towit, “That it be, and hereby is, recommended to the several States, to which the Officers of the Hospital & Medical department, respectively, belong, are or were Inhabitants, to settle the Accounts of the said Officers for depretiation, on the principles of the Resolutions of the 10th. of April 1780; and to make provision for paying the Balances that may be found due, in the same manner with Officers of the line”:
“That each state which shall advance more money in making good the depretiation to its respective Citizens than its proper proportion, shall be allowed for the same on account of the United States.”
These Resolutions, Gentlemen appear to have absolutely referred officers of the discription of Doctor Draper to the States where they had been Inhabitants at the time of entering the Service, for their depretiation, without even holding up an appearance that any other provision had been, or would be made for them: consequently, it would seem, that the States had no guard to take against previous settlements with the U. S., and that charges for depretiation paid to such Officers will be adjudged valid, notwithstanding any such previous settlements which might have been made by the applicants.
We take the liberty to submit these considerations, in order that you may determine whether it will not be best for the U. S. to take proceedings against Doctor draper for their indemnification. We have the Honor to be &c.


Title: From James Madison to Edmund Randolph, 14 September 1788
From: Madison, James
To: Randolph, Edmund

My dear friendNew York Septr. 14. 1788
Your favor of the 3d. instant would have been acknowledged two days ago, but for the approaching completion of the arrangement for the new Govt. which I wished to give you the earliest notice of. This subject has long employed Congs. and has in its progress assumed a variety of shapes, some of them not a little perplexing. The times as finally settled are Jany. for the choice of Electors, Feby. for the choice of a President, and March for the meeting of the Congress. The place, the present seat of the fedl. Govt. The last point was carried by the yielding of the smaller to the inflexibility of the greater number. I have myself been ready for bringing it to this issue for some time, perceiving that further delay, could only discredit Congs. and injure the object in view. Those who had opposed N. York along with me could not overcome their repugnance so soon. Maryland went away before the question was decided in a temper which I believe would never have yielded. Delaware was equally inflexible. Previous to our final assent a motion was made which tendered a blank for any place the majority would chuse between the North River and the Potowmac. This being rejected the alternative remaining was to agree to N. York or to strangle the Govt. in its birth. The former as the lesser evil was of course preferred and must now be made the best of. I acknowledge at the same time that I anticipate serious inconveniences from it. It will I fear be regarded as at once a proof of a preponderancy in the Eastern scale, and of a disposition to profit of that advantage. It is but just however to remark that the event is in great degree to be charged on the Southn. States which went into that camp. It will certainly entail the discussion on the new Governt. which ought if possible to be exempt from such an additional cause of ferment in its Councils. N. York will never be patiently suffered to remain even the temporary seat of Govt. by those who will be obliged to resort to it from the Western & Southn. parts of the Union. This temporary period must continue for several years, perhaps seven or eight, and within that period all the great business of the Union will be settled. I take it for granted that the first Session will not pass without a renewal of the question, and that it will be attended with all the unpleasing circumstances which have just been experienced. In the last place, I consider the decision in favor of N. York as in a manner fatal to the just pretensions of the Potowmac to the permanent seat of the Govt. This is unquestionably the light in which many of the advocates for N. York view the matter. The Legislature of N. Jersey which lately met approved of the part taken by her delegates on the principle that the first meeting of the Govt. at N. York would give the best possible chance for an early choice of the permanent seat, as this would do, for a preference of Trenton. As the case now stands, the Susquehanna is probably the most that can be hoped for, with no small danger of being stopped on the Delaware. Had any place South of the Delaware been obtained, the Susquehannah at least would have been secured with a favorable chance for the Potowmac.
The result of the Meeting at Harrisburg is I am told in the press & will of course be soon before the public. I am not acquainted with the particulars, or indeed with the general complexion of it. It has been said here that the meeting was so thin as to disappoint much the patrons of the scheme.

I am glad to hear that Mazzei’s book is likely to be vendible. The copies allotted for this and several other markets will not I fear be so fortunate. Yrs. Affecly.
Js. Madison Jr


Title: From James Madison to George Washington, 14 September 1788
From: Madison, James
To: Washington, George

Dear Sir
N. York Sepr. 14. 1788
The delay in providing for the commencement of the Government was terminated yesterday, by an acquiescence of the minor number, in the persevering demands of the major. The time for chusing the electors is the first wednesday in Jany. and for chusing the President the first wednesday in Feby. The meeting of the Govt is to be the first wednesday in March, and in the City of New York. The times were adjusted to the meetings of the State Legislatures. The place was the result of the dilemma to which the opponents of N. York were reduced of yielding to its advocates or strangling the Government in its birth. The necessity of yielding, and the impropriety of further delay, has for some time been obvious to me, but others did not view the matter in the same light. Maryland & Delaware were absolutely inflexible. It has indeed been too apparent that local & state Considerations have very improperly predominated in this question, and that something more is aimed at than merely the first Session of the Govt. at this place. Every circumstance has shewn that the policy is to keep Congress here till a permanent seat be chosen, and to obtain a permanent seat at farthest not beyond the Susquehannah. N. Jersey, by its Legislature as well as its Delegation in Congress, has clearly discovered her view to be a temporary appointment of N. York as affording the best chance of a permanent establishment at Trenton. I have been made so fully sensible of these views in the course of the business as well as of the impropriety of so excentric a position as N. York that I woud have finally concurred in any place more Southward to which the Eastern States wd. have acceded, and previous to the definitive vote, a motion was made tendering a blank for that purpose. At any place South of the Delaware, the Susquehannah at least would have been secured, and a hope given to the potowmac. As the case is I conceive the Susquehannah to be the utmost to be hoped for, with no small danger of being stopped at the Delaware. Besides this consequence, the decision will I fear be regarded as at once a proof of the preponderancy of the Eastern strength, and of a disposition to make an unfair use of it. And it cannot but happen that the question will be entailed on the New Governmt. which will have enough of other causes of agitation in its Councils.
The meeting at Harrisburg is represented by its friends as having been conducted with much harmony & moderation. Its proceedings are said to be in the press, and will of course soon be before the public. I find that all the mischeif apprehended from Clinton’s circular letter in Virginia will be verified. The Antifederalsts. lay hold of it with eagerness as the harbinger of a second Convention; and as the Governor espouses the project it will certainly have the co-operation of our Assembly.
I inclose a sensible little pamphlet which falls within the plan of investigating and comparing the languages of the Aboriginal Americans. With the sincerest attachment I am Dear Sir, Your Obedt. & very hb[le. servt.]
Js. Madison [Jr.]


Title: Board of Treasury to Virginia Delegates, 15 September 1788
From: Board of Treasury
To: Virginia Delegates

Gentlemen
Board of Treasury Septemr. 15th. 1788
We have considered the letter you did us the honor to write on the 12th Inst. and the Resolve of Congress of the 13th. June 1781 and beg leave to refer you to an Act of Congress of the 20th. February 1782; by which we apprehend Dr. Draper’s Account could only be settled at the Treasury of the United States; if he did not belong to the State of Virginia; which from his application to the Comptroller, he could not at that time have conceived to be the case.
Exclusive of this consideration, you will observe from a Resolve of Congress of the 29th. of February 1780; that the States could only pay the Balances due to their line, after deducting the advances made by the United States. It necessarily follows that the Auditors of the State in order to effect this settlement, should either have obtained from the Treasury of the United States, a state of the payments made; or have required such a statement from the person applying for a Settlement. Had this been done in the Settlement with Dr. Draper, the imposition which seems to have been practised could not have taken place.
Several instances have occurred to us where States have made large advances, from inattention or want of proper documents, which we do not consider as valid charges against the Union; if it holds good in one case, it will probably extend very far; and this consideration constrains us in the present instance to object to the advance made by the State of Virginia. We have the honor to be with great respect Gentlemen Your Most Obedient & Humble Servants

Samuel Osgood
Arthur Lee


Title: To James Madison from George Lee Turberville, ca. 20 September 1788
From: Turberville, George Lee
To: Madison, James

Letter not found. Ca. 20 September 1788. Mentioned in JM to Jefferson, 8 Oct. 1788. Requests JM to mention to Jefferson a report that a Dr. Spence and his wife, thought to have perished at sea, had been captured and taken to Algiers.


Title: Virginia Delegates to Board of Treasury, 22 September 1788
From: Virginia Delegates
To: Board of Treasury

Gentlemen
New York Sept. 22. 1788
We have attended to the letter you did us the honor to write on the 15th. Instant, in which you adhere to your objection to the sum standing as a charge against the Union, which has been paid by the State of Virginia, to Doctor Draper for his depretiation.
It appears that you now rest this objection upon two grounds: 1st. That Doctor Draper was not an Inhabitant of Virginia, and within the discription of officers refered to that State for settlement, under the resolution of the 13th. of June 1781—2dly, That the Auditor of the State, neglected to obtain from the Treasury of the United States, a statement of the payments which had been made to the applicant, or to require such a statement from himself: whereupon we beg leave to observe as to the first, that we are well assured, that upon investigation, Doctor Draper will be found to have been an Inhabitant of Virginia, at the time of his entering the service, and to have joined the Army in one of the Regiments of the line of that State; as to the second, it appears to us, that when the United States, refered certain Officers to their respective States for settlement, in the unreserved terms, of the Resolution of the 13th. June 1781, it became incumbent on them, to transmit the necessary statements for preventing impositions, and that it could not have been expected, that the individual States were to call for them—we are however happy in being able to inform you, that every difficulty upon this point is superceded, by a compliance with the alternative which you have brought to view; for the Virginia Act authorising the settlement of claims, such as Doctor Draper exhibitted, required from the applicants in order to guard against fraud on every side, returns upon oath, of all advances which they might have received, either from the State or the United States.
We are thus careful to inform you fully upon this subject, in order that the United States may be proceeding in proper season against Doctor Draper for their indemnification. We have the Honor to be Gentlemen, Your Most Obt. Servts.

J. M.
E. C
C. G.


Title: Edmund Randolph to Virginia Delegates, 23 September 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen
Richmond Sep. 23d. 1788.
I do myself the honor of inclosing to you copies of the Vouchers, on which Dr. Draper obtained a military Certificate from our Auditor, together with his account. We are much obliged to you for referring to the resolution of Congress, which establishes the right of Virginia to a credit for this demand, and for the footing, on which you have placed it with the board of treasury. But we cannot judge, what steps ought to be taken by us, without first knowing, whether any exceptions are made to our Vouchers, and why, after the resolution abovementioned; the board of treasury should have granted a certificate? However no time can be lost, as Dr Draper intends soon to sail for the East indies. We must therefore beg the favor of you to use your discretion in saving the debt, due from him. If you think that Virginia is liable; without retribution from the United States, or indeed if Virga. can be prevented by an agreement of the treasury board from waiving her right against the United States, by prosecuting Dr. Draper, we wish, that a prosecution may be instituted. The necessary expences will be paid on your draught. I have the honor &c.
E. R.


Title: To James Madison from George Washington, 23 September 1788
From: Washington, George
To: Madison, James

My dear Sir,
Mount Vernon Septr. 23d. 1788.
I duly received your letter of the 24th of last Month, but as we had no intelligence or circumstance in this quarter worthy of your acceptance, I postponed even the acknowledgment until I was gratifyed by the receipt of your subsequent favor of the 14th. instant. Indeed I have now little more to give you in return, than this information to prevent your apprehension of miscarriage; and my thanks for your illustration of the subject which has lately engaged the attention of Congress.
Upon maturer reflection, I think the reasons you offer in favor of Philadelphia as the place for the first meeting of Congress are conclusive: especially when the farther agitation of the question respecting its permanent residence is taken into consideration. But I cannot, however, avoid being satisfied that the minority should have acquiesced in any place, rather than to have prevented the system from being carried into effect. The delay had already become the source of clamours and might have given advantages to the Antifœderalists. Their expedient will now probably be an attempt to procure the Election of so many of their own Junto under the New government, as, by the introduction of local and embarrassing disputes, to impede or frustrate its operation.
In the meantime it behoves all the Advocates of the Constitution, forgetting partial & smaller considerations, to combine their exertions for collecting the wisdom & virtue of the Continent to one centre; in order that the Republic may avail itself of the opportunity for escaping from Anarchy, Division, and the other great national calamities that impended. To be shipwrecked in sight of the Port would be the severest of all possible aggravations to our misery—and I assure you I am under painful apprehensions from the single circumstance of Mr. H——[’]s having the whole game to play in the Assembly of this State, and the effect it may have on others—It should be counter-acted if possible. With sentiments of the highest esteem & regard I am—My dear Sir Your Affectionate Hble Servt.
Go: Washington

PS. Permit me to request the favor of you to forward the Letters under cover with this by a favourable conveyance.


Title: From James Madison to Edmund Randolph, 24 September 1788
From: Madison, James
To: Randolph, Edmund

My dear friend
New York Sepr. 24. 1788
I have been favd. with yours of the 12th. instant. The picture it gives of the state of our Country is the more distressing as it seems to exceed all the known resources for immediate relief. Nothing in my opinion can give the desired facility to the discharge of debts, but a reestablishment of that confidence which will at once make the creditor more patient, and open to the solvent debtor other means than bringing his property to market. How far the new Government will produce these effects cannot be yet decided, But the utmost success that can be hoped from it, will leave in full force the causes of intermediate embarrassment. The additional pressure apprehended from British debts, is an evil also for which I perceive at present no certain remedy. As far however as the favorable influence of the new Govt. may extend, that may be one source of alleviation. It may be expected also that the British Creditors will feel several motives to indulgence. And I will not suppress a hope that the new Govt. will be both able & willing to effect something by negociation. Perhaps it might not be amiss for the assembly to prepare the way by some act or other, for drawing the Attention of the first Session of the Congress to this subject. The possession of the posts by G. Britain, after the removal of the grounds of her complaint, by the provision in the new Constitution with regard to the treaty, will justify a renewal of our demands, and an interference in favor of American Citizens on whom the performance of the treaty on our side depends.
Congress have agreed to some resolutions in favor of the Mississippi which are well calculated to appease the discontents of our Western brethren. You shall soon have a copy of them. They are grounded on a remonstrance from N. Carolina on that subject. By the way how has it happened that the last resolutions of Virga. were never forwarded to the Delegation?
I refer to the inclosed papers for the current News, and remain Yrs. Affectly
Js. Madison Jr


Title: To James Madison from Joseph Jones, [ca. 24 September] 1788
From: Jones, Joseph
To: Madison, James

Dr. Sr.
[ca. 24 September 1788]
On my return the other day from the upper country I found your letter for me at Col. Monroes. The question then depending respecting the place of meeting of the congress under the New government has I find been since decided in favor of New York and the different periods fixed for the States to give operation to the governmt. Although I am sensible the proceedings that have been had in Congress respecting the place where the first session should be held will make unfavourable impressions of the policy of the eastern states, yet when the nature of the question is considered some allowances should be made for local prejudices which more or less actuate all public bodies where the object is local. I confess I consider the agitation of the question by the present Congress as premature and tending to confirm the prejudices of those of the present body, who may become members of the new legislature and thereby introduce that warmth into the discussion of the question hereafter which I hoped would have been avoided. The decision for establishing the fœderal seat of government appears to me to have been more proper for the deliberations of the new than the old government and I am disposed to believe notwithstanding the probability of the State spirit being carried into the Senate that it will exist in a less degree than it has hitherto done in Congress as the members from each State are few and these it is to be presumed will be selected from the most enlightend and virtuous of their citizens, especially too when it is contemplated how great are the powers vested in that body. May not the legislatures of the states should they incline to do so choose the electors themselv[es] instead of refering the choice to the people. The words of the constitution are not so clear on that point as to restrain these public bodies from spurning the exercise of that power and we know all public bodies are but too apt to assume rather than relinquish power where by any construction of terms they may interpose authority.
There are I am told in the Fredericksburg goal two men confined and to undergo an examing court for altering the final settlements by extracting the ink or figures and inserting others to a much greater amount. Their names are I think Willet and Whitney. A third it is said was concerned with them who is gone off and I think named Grant. These men I hear have been in the eastern States practicing the same forjeries and impositions and that some of the certificates they had passed have been presented to the Treasury office in N. York and decided to be forjeries. It will I fear be difficult to prove the fact upon them so as to bring them to condemation. The nature of the offence is such as to be difficult of proof. Yr. friend & Servt
Jos: Jones
P. S. I go for Richmond in a few days.


Title: From James Madison to George Washington, 26 September 1788
From: Madison, James
To: Washington, George

Dear Sir
New York Sepr. 26. 1788
I subjoin two resolutions lately taken by Congress in relation the Mississippi, which I hope may have a critical and salutary effect on the temper of our western Brethren.

In Congress Sepr. 16.
On report of the Committee &c to whom was referred the Report of the Secy. for For. Affairs on a motion of the Delegates of North Carolina, stating the uneasiness produced by a Report “that Congress are disposed to treat with Spain for the surrender of their claim to the navigation of the River Mississippi” and proposing a resolution intended to remove such apprehensions,
Resolvd. that the said Report not being founded in fact, the Delegates be at liberty to communicate all such circumstances as may be necessary to contradict the same and to remove misconceptions.
Resolvd. that the free navigation of the River Mississippi is a clear and essential right of the United States, and that the same ought to be considered and supported as such.
In addition to their resolutions which are not of a secret nature, another has passed arresting all negociations with Spain, and handing over the subject thus freed of biass from any former proceedings, to the Ensuing Government. This last Resolution is entered on the secret journal, but a tacit permission is given to the Members to make a confidential use of it. With the Sincerest attachment and affection, I remain Dear Sir Your Obliged & Obedt servt.
Js. Madison Jr


Title: To James Madison from Tench Coxe, 26 September 1788
From: Coxe, Tench
To: Madison, James

Dr. Sir
Philada. Sept. 26th. 1788.
I am favored with your last by post & am much obliged to you for the News papers, and your remarks concerning the Views of the opposition in several places.
I would not by any means wish a request of the circle of gentlemen, who wrote the papers under the Signature of Publius, which I think with you would be disagreeable and improper. I am to ask your pardon for the trouble I have given you on that Subject, but was led to it from hearing that Mr Jay had written the two first Numbers. I therefore presumed that there might be no impropriety in a confidential communication concerning the remainder. However I confess I think the secrecy both political & delicate, and am now only anxious that you should excuse the trouble I gave you.
The department alluded to in my last is universally deemed the most important in our Affairs. The home business is most disordered, and is to be the source of private comfort and national greatness—or the reverse. I will frankly own to you what was my motive in the hint I used the freedom to give. It was entirely meant to prevent your giving your interest or influence to another—& to prevent your suggesting the name of another. As I said before I wish nothing in reply, and that it may make no more unfavorable impression, than that of evincing my private respect & esteem.
Enclosed you will find a bill now pending in our legislature for the election of Representatives, & Electors, and indeed all our state arrangements in the federal Affairs—except the Election of Senators, wch. is fixt for Tuesday 30th. inst. The Candidates are among the citizens Mr. R. Morris—and if they take two from hence Mr. Bingham, but of the latter not much has been sd. since Mr. Morris [‘]s name has been in Circulation—from the Country Genls. Irwin, Armstrong, Messrs. Maclay, Pettit & Findlay. If the federal interest act in concert Morris & McClay will be the Men as they have the most votes among the friends of the Constitution. Genl. Armstrongs friends are strenuous & apparently determined. Should the fedl. interest divide—tis impossible to say what will be the issue, but it must be in part unfavorable. The two last are decided for the resumption by the states of the power of direct taxation—and therefore we must earnestly hope they may not succeed. If elected their efforts will accord with the protest of our Minority.
You will observe we are to elect the reps. & electors by one genl. ticket. The latter is given to the people, tho it might have been reserved by the house. To avoid a special Session, was one of the Reasons, probably to make a general ticket in aid of a genl. one for the Reps. was another. I think it will be safe in Pennsa. both as to the Electors & fedl. Representatives, but it will give a precedent to the other states, where the Majority are unfavorable—such as N. York &ca. which may require the early attention of our friends in those places. Will you after perusal present my comps. with the bill to Col. Hamilton, or in his Absence to Chancellor Livingston. I am very truely, dr. Sir, your most respectf. h Servt.
Tench Coxe


Title: Virginia Delegates to Edmund Randolph, 27 September 1788
From: Virginia Delegates
To: Randolph, Edmund

Sir,
New York Sept. 27. 1788
We do ourselves the honor to inclose to your Excellency a letter which we received from the Treasury Board on the 15th. Inst. and our reply to it of 22d. in addition to the papers transmitted sometime ago upon the subject of Doctor Drapers settlement for his depredation. We have concieved it our duty to make the several communications to the Board which have taken place, in order that there might be no plea of acquiescence on the part of the State, in the protest on the part of the United States, against the settlement made with the former, as founding a charge upon the latter. It remains for the Executive to treat the subject in such manner as to them shall seem best. We have the Honor to be, with great respect, your Excellencies Most Obt. Servants.

Js. Madison Jr.
Ed. Carrington
C. Griffin


Title: To James Madison from John Dawson, 30 September 1788
From: Dawson, John
To: Madison, James

Dear Sir
Frdksbg Sep 30th. 1788
A spraind wrist, which is by no means well, has prevented my answering your two letters receivd in due time.
The attention of every person in this place has been taken up by one Willet and Lindley, men who were some days since apprehended, and committed to goal on suspicion of counterfeiting continental final settlement certificates. On Friday last they were try’d by the court of this corporation and order’d to Richmond—from the testimony which then appeared, there remains little doubt, but the suspicions were well grounded. Willet has discover’d to a person in confidence how the business was effected—he has also intimated that there were many

   a member of Congress—and a member of the Connecticut Council.

persons of distinction concern’d. Whether this is the fact, and whether in order to save his own life he will discover who they are is at present doubtful. Should he not, I verily believe he will suffer. The manner in which they have carri’d on the business has been by purchasing up small certificates, and then by the use of Spi: of Vit: extracting the sum and number—by restoring the paper with Gum ara:—and filling up the blank with what the[y] plaese. It has been so well done that in several instances the public officer at Richmond has not been able to determine the good from the bad certificate. Willet has every appearance of a Gentleman & went from Connecticut to Georgia, from whence he has come to Virginia. One Grant is also concernd in the business—but being at Alexandria when his friend was apprehended & hearing of it he very prudently decamp’d. He was immediately pursued but we have not yet heard of his being taken.
I have no doubt but our assembly will immediately on there meeting take such steps as are necessary to put the New Goverment into Motion—but fear some inconvenience will arise to the back part of the state from the early choice of electors, President, and members to the lower house.
The determination of Mr E. Randolph to quit the Goverment renders it very uncertain who will succeed him—many are talkd of—but I apprehend R. H. Lee—B. Randolph & Grayson will be among the highest numbers. It is said Mr. Henry intends to aid R H Lee—if so I think he will be elected, his interest in the N. Neck being good.
Do you intend to Richmond this fall? If not I trust you will be frequent in your communications during the setting of the assembly as I shall be regular in mine. With much respect and esteem I am, dear sir Yr. Friend & hm: Sert
J Dawson.


Title: Edmund Randolph to Virginia Delegates, 3 October 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen,
Richmond Octr. 3d 1788.
We have received a letter from the board of treasury, with several inclosures, concerning arrearages of pensions. I do myself the honor of inclosing to you a copy of our act, in consequence thereof. I beg leave at the same time to add, that we have not spoken of carrying the arrearages of militia to any other period, than the time of the wounds which occasioned the disability, being received. Perhaps it may be proper, where the time of their discharge, or the ceasing of their pay can be proved, to make this the period, to which their arrearages are to be calculated. But this may not be always capable of proof. I mention this circumstance, lest a misconstruction should be made. And indeed it seems to be less important to say any thing about the time of the militia being discharged or ceasing in their pay; as I suppose, that an answer to the case of regulars in these points will be an answer in the same respects to the case of militia. I beg your immediate attention to this subject. I have the honor &c
E. R.


Title: From James Madison to George Lee Turberville, 3 October 1788
From: Madison, James
To: Turberville, George Lee

Letter not found. 3 October 1788. Acknowledged in Turberville to JM, 24 Oct. 1788. Reports inquiries he has made concerning the fate of Dr. Spence (JM to Jefferson, 8 Oct. 1788).


Title: From James Madison to Jacquelin Ambler, 4 October 1788
From: Madison, James
To: Ambler, Jacquelin

Sir
N. York Octr. 4th. 1788.
Please to pay to the Honble. Edward Carrington or order two hundred and fifty dollars and charge the same against me as Delegate to Congress for the State of Virginia, computing from Ocr. 1st. 1788.
Js. Madison Jr.


Title: Virginia Delegates to Board of Treasury, 4 October 1788
From: Virginia Delegates
To: Board of Treasury

Gentlemen,
New York Octo. 4. 1788
We do ourselves the Honor to inclose for your better information upon the case of Doctor Draper, Copies of the Account & Vouchers upon which he founded his settlement with the State of Virga. for his depretiation, according to the Resolution of Congress of the 13th. June 1781.

These papers have been forwarded by the Executive in order that the U. S. might be fully ascertained of the propriety of the settlement made by the State with Doctor Draper, and that they may be proceeding in Season against him for the recovery of the sum which has been paid him for the same service by the Comptroller of the Treasury. We have the Honor to be Gentlemen &c.

J. M
E. C
C. G.
H. L.


Title: Virginia Delegates to Edmund Randolph, 4 October 1788
From: Virginia Delegates
To: Randolph, Edmund

Sir,
New York Octo. 4. 1788
We have the Honor to acknowledge the Rect. of your Excellencies letter of the 23d. Ult. inclosing Copies of the Account & Vouchers founding the settlement of the State of Virginia with Doctor Draper for his depretiation, and leaving it in our descretion, whether to prosecute him for the indemnification of the State, or to take any steps towards establishing the Validity of the transaction against the United States.
Upon fully considering this subject in all its points, we have determined that it will be the most safe course to rely upon the validity of the Transaction against the United States, for the following Reasons.
1st. Upon a consultation with an eminent Practitioner of this City, it becomes questionable whether there exists a legal ability in one State, to sustain an Action against an individual in another.
2dly It is equally questionable whether Doctor Drapers circumstances are such as to yeild the damages, Could a Suit be sustained, and terminate in a Judgement against him.
3dly. Any unsuccessful effort against Doctor Draper might weaken the claim of the State against the United States, as founded upon the Resolution of the 13th. June 1781.
And 4thly. the effect would extend to all other cases that may be Similar to Doctor Drapers, and it is highly probable there are some such.
In pursuance of this determination we have transmitted to the Board of Treasury the Copies which your Excellency did us the Honor to forward, together with a letter of which the inclosed is a Copy; this proceeding is submitted to the judgement of the Executive, and we shall be happy in being honored with such further directions as may appear proper. We have the honor to be with great respect Your Excellencies Most Obt. Servts.

Js. Madison Jr.
Ed. Carrington
Henry Lee
C. Griffin

P. S. We have also the Honor to inclose to your Excellency two Resolutions of Congress which have lately passed upon the subject of Navigation of the Mississippi.


Title: To James Madison from Edmund Pendleton, [6 October] 1788
From: Pendleton, Edmund
To: Madison, James

[6 October 1788]
… The Resolutions respecting the Mississippi Navigation are of a Balmy nature, tending to give Repose to those concerned, and impose silence on such as caring nothing about it, used the Subject as an engine of Opposition, not such is the fixure of the tempory seat of Congress. I have already met taunts on the occasion, as the first instance of Eastern Partiality and influence, which Opposition foresaw would pervade & wholly direct the new Government. In vain did I observe that the measure had a Southern Vote. The answer was that they would by one Artifice or other, always find means to engage such assistance. I feel concern at the determination, tho’ as temporary it is not in its self important. Yet nothing in my opinion can make a new Government wear a more inauspicious aspect, than the appearance of favor to one part of the Society over others, a full and Equal diffusion of its Powers to the whole, is what all had a right to expect from the Ruler, and will never acquiesce in a seat of Government so ec-centric & inconvenient as New York; but I hope time & reflection will produce conviction of the impropriety of this vote, before the stable fixure, & indeed operate upon the second meeting of the New Congress.…


Title: Edmund Randolph to Virginia Delegates, 7 October 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen,
Richmond Oct. 7th 1788.
I do myself the honour of acknowledging the receipt of your favor of the 27th ultimo, with its inclosures. We are not at present advised of any measures which may be necessary in addition of our letter to you of the 23d. Ulto. A copy of that letter is herewith inclosed. I have the honor &c.
E. R.


Title: From James Madison to Thomas Jefferson, 8 October 1788
From: Madison, James
To: Jefferson, Thomas

Dear Sir
New York Octr. 8. 1788
Herewith inclosed are a letter for yourself forwarded to my hands from General Washington, and two others for the Marquis, one from the same quarter, the other from myself. I put both the last under cover to you, not knowing what regard may be due to Newspaper authority, that the Marquis is under the open displeasure of the Court, and may therefore be the less likely to receive letters thro’ any other channel. Sometimes the report runs that he is in the Bastile; at another that he is at the head of a revolt in some one of the Provinces.
My last letters have followed each other so quickly and the last of all is of such recent date, that this opportunity by a gentleman going to France, enables me to add little to what has been already communicated. The result of the Meeting at Harrisburg was the latest event worthy of notice at the date of my last. Nothing has since taken place in relation to the New Government, but the appointment of Mr. Robt. Morris, and a Mr. McClay, to represent Pennsylvania in the Senate. A law has also passed in that State providing for the election of members for the House of Reps. and of electors of the President. The Act proposes that every Citizen throughout the State shall vote for the whole number of members allotted to the State. This mode of election will confine the choice to characters of general notoriety, and so far be favorable to merit. It is however liable to some popular objections urged agst. the tendency of the new System. In Virginia, I am inclined to think the State will be divided into as many districts, as there are to be members. In other States, as in Connecticut the Pena. example will probably be followed. And in others again a middle course be taken. It is perhaps to be desired that various modes should be tried, as by that means only the best mode can be ascertained. There is no doubt that Genl. Washington will be called to the Presidency. For the vice Presidency, are talked of principally Mr. Hancock & Mr. Adams. Mr. Jay or Genl. Knox would I believe be preferred to either, but both of them will probably chuse to remain where they are. It is impossible to say which of the former would be preferred, or what other Candidates may be brought forward.
I have a letter from Mr. George Lee Turberville of Virginia requesting me to mention to you a report proceeding from Greenwich that a Docr. Spence and his lady, (the former a Virginian of respectable family in the lower End of the Northern Neck, and whose mother is still living, in a second marriage with a Docr. Thomson of Westmoreland County) were captured on their way to Virginia and carried into Algiers. This event is said to have happened seven or eight years ago, though discovered but lately, it having been taken for granted that the vessel and all on board had perished at sea. I am much inclined to believe that this supposition is the true one, and that the Greenwich story has no foundation. I communicate it nevertheless as requested by Mr. Turberville, that you may have an opportunity of collecting for the friends of Docr. Spence any information which may be interesting to them, and of taking any steps that such information may suggest in behalf of the distressed.
I have already acquainted you with the result of my enquiries in the case of Mrs. Burke. The effects in the hands of Wm. S. Brown had been delivered over to a Mr. Kemble a respectable mercht. here, who is admtr. to the deceased Burke and who tells me that the whole Estate of the latter does not pay his debts.
I shall send along with this a few seed of the sugar maple, the first & the whole that I have been able to obtain. I wish you all happiness & remain Dr. Sir Yrs. most Affecly.
Js. Madison Jr.


Title: Edmund Randolph to Virginia Delegates, 8 October 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen
Richmond Octr. 8. 1788
Our express returned yesterday from Kentucky; bringing an answer from Colo. Muter and Colo. Marshall, on the subject of the surveys on the Miami. This answer however is not complete. We shall endeavour to make it so, as soon as we receive further information from another of the superintendants, and from the Register of the land-office. This will be accomplished I presume, early enough to go by the first mail in the next week. I have the honor gentlemen to be with great respect yr. mo. ob. serv.
Edm: Randolph.


Title: Edmund Randolph to Virginia Delegates, 15 October 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen,
Richmd Oct. 15. 88
The inclosed so fully speak for themselves, that I need only add the respect with which I am &c.
E. R.


Title: Observations on Jefferson’s Draft of a Constitution for Virginia, [ca. 15 October] 1788
From: Madison, James
To:

Editorial Note
During the 1780s JM twice communicated lengthy expositions of his constitutional ideas to friends in Kentucky who had solicited his advice in anticipation of that district’s separation from Virginia. The first commentary went to Caleb Wallace in the summer of 1785 (PJMWilliam T. Hutchinson et al., eds., The
          Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville,
        Va., 1977—)., VIII, 350–57); the second was sent to John Brown in the fall of 1788. Brown had asked him to draft a plan of government for Kentucky in the spring of 1788, but JM refused to take on this additional task while preoccupied with the business of the Virginia ratifying convention. After the convention he accepted Brown’s request “for some remarks upon Jefferson plan of Govt. denoting such alterations as would render it more applicable to the District of Kentucky” (Brown to JM, 12 May and 26 Aug. 1788; JM to Brown, 27 May and 26 Sept. 1788). The plan referred to was the draft constitution for Virginia that Thomas Jefferson, foreseeing a revision of the constitution of 1776, had prepared in the spring of 1783 and later published as an appendix to his Notes on Virginia (Boyd, Papers of JeffersonJulian P. Boyd et al., eds., The Papers of
          Thomas Jefferson (19 vols. to date; Princeton, 1950—)., VI, 278–317). JM sent his comments on Jefferson’s constitution to Brown in mid-October and later gave a copy to George Nicholas, who was soon to move to Kentucky (JM to Brown, 21 Jan. 1789; Nicholas to JM, 24 Jan. 1789). Although Brown and other Kentuckians expected to make immediate use of JM’s views in framing a government, statehood for Kentucky was delayed until 1792, and the constitution adopted by the Kentucky convention of that year bore few marks of JM’s influence.

In his constitution Jefferson sought to remedy what he believed to be grave defects in the Virginia Constitution of 1776: it had been issued as a mere ordinance by a body possessing legislative power only; the powers of government were concentrated in the House of Delegates, making a mockery of the constitution’s professed regard for Montesquieu’s famous maxim; representation was unequal, not being in proportion to the number of freeholders; and there was no provision for amending the constitution. JM fully concurred with Jefferson’s view that there were serious defects in the 1776 constitution, but he found much to criticize when asked to judge the merits of his friend’s draft as a proposed constitution for Kentucky in 1788. Although JM confined his remarks to those features he considered objectionable, there was scarcely a section that he did not find fault with; and one provision that he did not discuss here, the procedure for calling a convention to amend the constitution, had already come under his critical scrutiny in The Federalist No. 49 (PJMWilliam T. Hutchinson et al., eds., The
          Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville,
        Va., 1977—)., X, 460–63).
In their long and close relationship the differences between JM and Jefferson on fundamental political and constitutional questions were perhaps never more sharply defined than during the latter half of the 1780s. The preceding year they had disagreed over JM’s proposal for a negative on state laws; during the present one they would express differing views on the necessity and efficacy of a bill of rights; and they soon would have a memorable exchange on Jefferson’s proposition that “the earth belongs to the living” (Jefferson to JM, 20 June 1787, and JM to Jefferson, 24 Oct. 1787 [PJMWilliam T. Hutchinson et al., eds., The
          Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville,
        Va., 1977—)., X, 64, 209–14]; JM to Jefferson, 17 Oct. 1788; Jefferson to JM, 15 Mar., 6 Sept. 1789, and JM to Jefferson, 4 Feb. 1790 [Boyd, Papers of JeffersonJulian P. Boyd et al., eds., The Papers of
          Thomas Jefferson (19 vols. to date; Princeton, 1950—)., XIV, 659–61; XV, 392–97; XVI, 147–50]).
JM’s Observations adopted the order and headings of the published version of Jefferson’s draft, beginning with the legislative department (Notes on Virginia [Peden ed.], pp. 209–22). The legislature Jefferson proposed consisted of a house of delegates elected for a one-year term by all free males and a senate elected for a two-year term by electors grouped into districts; those qualified to elect delegates were also qualified to vote for senatorial electors. Still deeply influenced by the “mixed” constitution of classical antiquity and English history, JM believed that the senate should be more sharply differentiated from the house of delegates. An American senate, to be sure, could not pretend to duplicate the English House of Lords, but it should be a dignified and responsible body, capable of checking the impulsive and erratic behavior of the popular branch. It should have at least a six-year term, as in the federal Constitution; this would promote stability and provide a genuine safeguard to republican liberty. He also objected to electing senators by districts because it fostered a “spirit of locality” and made senators too much like the members of the other branch: representatives of various parochial interests. If the senate was to be the repository of the general interest of the state, its members should be elected by the whole state.

As an additional means of differentiating the two branches of the legislature, JM urged separate suffrage qualifications. He agreed that the right to vote should be extensive in electing the house of delegates, but preferred a freehold requirement in senatorial elections. In arguing for such a distinction, JM confronted the fundamental problem of republican government, one that he grappled with throughout his life: how to reconcile majority rule, the vital principle of republicanism, with freedom and justice. He foresaw the day when freeholders would no longer be the dominant class in America and their rights, unless given a “defensive” protection in one of the legislative branches, would then be dangerously exposed to the whims of the property-less majority. His proposed middle way would secure the interests of both persons and property, “the two cardinal objects of Government.” Even though freeholders were likely to be a majority for many years to come, he believed the present opportunity should not be lost to establish property rights on a constitutional footing.
JM’s warning went unheeded in Kentucky, however, as well as in other states. In 1788 only the constitutions of North Carolina and New York stipulated different property qualifications for electing the two branches of the legislature. By 1821 North Carolina alone maintained such a distinction, but JM continued to advocate a more exclusive right of suffrage for one branch of the legislature. North Carolina should carry on its experiment “for no inconsiderable period,” he wrote, “until, in fact, the non-freeholders should be the majority.” How to balance the rights of persons and property was JM’s lifelong preoccupation, but his last word on the subject was a grudging acceptance of democracy: “And if the only alternative be between an equal and universal right of suffrage for each branch of the Government, and a confinement of the entire right to a part of the citizens, it is better that those having the greater interest at stake, namely, that of property and persons both, should be deprived of half their share in the Government, than that those having the lesser interest, that of personal rights only, should be deprived of the whole.” To be sure, he hoped that a choice between these two alternatives would not have to be made. On the other hand, if the advent of democracy was inevitable in America, he was optimistic that it would not be inimical to property rights. Even without the constitutional safeguard of suffrage qualifications, these rights would derive a security “from the ordinary influence possessed by property, and the superior information incident to its holders, from the popular sense of justice, enlightened and enlarged by a diffusive education, and from the difficulty of combining and effectuating unjust purposes throughout an extensive country” (Madison, Letters [Cong. ed.][William C. Rives
        and Philip R. Fendall, eds.], Letters and Other Writings of James
          Madison (published by order of Congress; 4 vols.; Philadelphia, 1865)., IV, 26–27).
Another principal defect of Jefferson’s constitution, JM believed, was that it failed to establish a proper balance of power among the three departments of government. The legislature, which was to appoint all the major offices, was still clearly superior to the executive and judiciary. He recommended the federal Constitution as the model to follow: the people, either directly or indirectly through electors, should elect the executive (who would be eligible for reelection), and the senate and governor should share the appointment of the major offices. The problem of maintaining an equilibrium of power was most delicate in the matter of impeachments. JM disliked the method prescribed in the federal Constitution, believing that the power of one branch of the legislature to impeach and the power of the other to try the impeachment left the president too dependent on Congress (Farrand, RecordsMax Farrand, ed., The Records of the
          Federal Convention of 1787 (4 vols.; New Haven, 1911–37)., II, 612). He approved of Jefferson’s proposal for a separate court of impeachments but suggested some rather complicated refinements to avoid the danger of combinations of two departments against the third.
JM reflected the same concern for creating a true balance of power within the government in his remarks on the council of revision, which in Jefferson’s draft was to be composed of members of the executive and judiciary and to have the power to reject bills passed by the legislature. This was a favorite idea of JM’s, which he had tried to write into the federal Constitution. Instead of a council, however, he now preferred that legislative bills be sent separately to the executive and judiciary departments for approval, a modification he had proposed late in the Federal Convention (ibid., II, 298). This would provide an additional check against unwise legislation while strengthening the independence of the executive and judiciary. Vesting these two departments with a revisionary power would help to correct the dangerous bias in favor of the legislature that characterized the republican governments of America.
In commenting on the council of revision JM touched briefly on the troublesome question of the judiciary’s power to pronounce a law unconstitutional. This was a subject he pondered on a number of occasions during his career, but in most of these JM was concerned with the relationship between the federal judiciary and the state governments. Here he consistently upheld the authority of the Supreme Court as the final constitutional arbiter in conflicts between the federal and state jurisdictions. Indeed, he believed this function of the highest court was absolutely necessary to maintain the supremacy of the federal government, an object he had originally hoped to achieve by means of a legislative veto over state laws (see, for example, The Federalist No. 39, PJMWilliam T. Hutchinson et al., eds., The
          Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville,
        Va., 1977—)., X, 381; JM to Jefferson, 27 June 1823; JM to Joseph C. Cabell, 7 Sept. 1829; Notes on Nullification, 1835–36, Madison, Writings [Hunt ed.]Gaillard Hunt,
        ed., The Writings of James Madison (9 vols.; New York,
        1900–1910)., IX, 140–43, 348–49, 351, 605–7). A more vexing problem was the relationship between the judiciary and the other departments within the same government. Could a court declare an act of a coordinate legislature invalid on the grounds that it violated the constitution? In his Observations JM was clearly unsympathetic to the doctrine of judicial review in this sense, for it would make the judiciary “paramount in fact to the Legislature, which was never intended, and can never be proper.” One of the purposes of giving the judiciary a share in the revisionary power over legislative bills was to preclude “the question of a Judiciary annulment of Legislative Acts” (JM to James Monroe, 27 Dec. 1817, Madison, Writings [Hunt ed.]Gaillard Hunt,
        ed., The Writings of James Madison (9 vols.; New York,
        1900–1910)., VIII, 406–7). Once laws had successfully completed the revisionary process, such acts were to be irrevocable unless altered or repealed by the legislature itself.
American experience in both the federal and state governments subsequently saw judicial review triumph over executive and judicial revision. In time JM came to accept the Supreme Court’s unique and binding power in expounding the Constitution, but only in a limited sense. If the judiciary in fact had the last word, he wrote in 1799, its finality was only in relation to the other departments, “not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.” Judicial expositions of the Constitution might be binding for a particular case, but the people through legitimate action could effect a change in the political climate that would in time lead “to a change in the opinion of the judiciary” (Report on the Virginia Resolutions, 1799–1800, ibid., VI, 352, 402–3; Corwin, Court over Constitution, pp. 31–33, 44–45, 59–61). While always insisting that the three departments were coordinate, each deriving its authority from the people and exercising its functions according to its own interpretation of the Constitution, JM conceded that the “judicial bench, when happily filled,” was “the surest expositor of the Constitution, as well in questions within its cognizance concerning the boundaries between the several departments of the Government as in those between the Union and its members” (JM to ?, [1834?], Madison, Letters [Cong. ed.][William C. Rives
        and Philip R. Fendall, eds.], Letters and Other Writings of James
          Madison (published by order of Congress; 4 vols.; Philadelphia, 1865)., IV, 349–50).

[ca. 15 October 1788]
Observations on the “Draught of a Constitution for Virginia”
Senate. The term of two years is too short. Six years are not more than sufficient. A Senate is to withstand the occasional impetuosities of the more numerous branch. The members ought therefore to derive a firmness from the tenure of their places. It ought to supply the defect of knowledge and experience incident to the other branch, there ought to be time given therefore for attaining the qualifications necessary for that purpose. It ought finally to maintain that system and steadiness in public affairs without which no Government can prosper or be respectable. This cannot be done by a body undergoing a frequent change of its members. A Senate for six years will not be dangerous to liberty. On the contrary it will be one of its best guardians. By correcting the infirmities of popular Government, it will prevent that disgust agst. that form which may otherwise produce a sudden transition to some very different one. It is no secret to any attentive & dispassionate observer of the pol: Situation of the U. S. that the real danger to republican liberty has lurked in that cause.
The appointment of Senators by districts seems to be objectionable. A spirit of locality is inseparable from that mode. The evil is fully displayed in the County representations; the members of which are every where observed to lose sight of the aggregate interests of the Community, and even to sacrifice them to the interests or prejudices of their respective constituents. In general these local interests are miscalculated. But it is not impossible for a measure to be accomodated to the particular interests of every County or district, when considered by itself, and not so, when considered in relation to each other and to the whole State; in the same manner as the interests of individuals may be very different in a State of nature and in a Political Union. The most effectual remedy for the local biass is to impress on the minds of the Senators an attention to the interest of the whole Society by making them the choice of the whole Society, each citizen voting for every Senator. The objection here is that the fittest characters would not be sufficiently known to the people at large. But in free Governments, merit and notoriety of character are rarely separated, and such a regulation would connect them more and more together. Should this mode of election be on the whole not approved, that established in Maryland presents a valuable alternative. The latter affords perhaps a greater security for the selection of merit. The inconveniences chargeable on it are two: first that the Council of electors favors cabal. Against this the shortness of its existence is a good antidote. Secondly that in a large State the meeting of the Electors must be expensive if they be paid, or badly attended if the service be onerous. To this it may be answered that in a case of such vast importance, the expence which could not be great, ought to be disregarded. Whichever of these modes may be preferred, it cannot be amiss so far to admit the plan of districts as to restrain the choice to persons residing in different parts of the State. Such a regulation will produce a diffusive confidence in the Body, which is not less necessary than the other means of rendering it useful. In a State having large towns which can easily unite their votes the precaution would be essential to an immediate choice by the people at large. In Maryland no regard is paid to residence. And what is remarkable vacancies are filled by the Senate itself. This last is an obnoxious expedient and cannot in any point of view have much effect. It was probably meant to obviate the trouble of occasional meetings of the Electors. But the purpose might have been otherwise answered by allowing the unsuccessful candidates to supply vacancies according to the order of their standing on the list of votes, or by requiring provisional appointments to be made along with the positive ones. If an election by districts be unavoidable and the ideas here suggested be sound, the evil will be diminished in proportion to the extent given to the districts, taking two or more Senators from each district.
Electors. The first question arising here is how far property ought to be made a qualification. There is a middle way to be taken which corresponds at once with the Theory of free government and the lessons of experience. A freehold or equivalent of a certain value may be annexed to the right of vot[in]g for Senators, & the right left more at large in the election of the other House. Examples of this distinction may be found in the Constitutions of several States, particularly if I mistake not, of North Carolina & N. York. This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property. The former will be sufficiently guarded by one branch, the latter more particularly by the other. Give all power to property; and the indigent [will] be oppressed. Give it to the latter and the effect may be transposed. Give a defensive share to each and each will be secure. The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution. In all the Governments which were considered as beacons to republican patriots & lawgivers, the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population, & American property [,] the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified. Experience and investigation have however produced more correct ideas on this subject. It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property. It must be foreseen that America, and Kentucky itself will by degrees arrive at this State of Society; that in some parts of the Union a very great advance is already made towards it. It is well understood that interest leads to injustice as well when the opportunity is presented to bodies of men, as to individuals; to an interested majority in a republic, as to the interested minority of any other form of Government. The time to guard agst. this danger is at the first forming of the Constitution, and in the present state of population when the bulk of the people have a sufficient interest in possession or in prospect to be attached to the rights of property, without being insufficiently attached to the rights of persons. Liberty not less than justice pleads for the policy here recommended. If all power be suffered to slide into hands not interested in the rights of property which must be the case whenever a majority fall under that description, one of two things cannot fail to happen; either they will unite against the other description and become the dupes & instruments of ambition, or their poverty & independence will render them the mercenary instruments of wealth. In either case liberty will be subverted; in the first by a despotism growing out of anarchy, in the second, by an oligarchy founded on corruption.
The second question under this head is whether the ballot be not a better mode than that of voting viva voce. The comparative experience of the States pursuing the different modes is in favor of the first. It is found less difficult to guard against fraud in that, than against bribery in the other.
Exclusions. Does not the exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? Does it not violate another article of the plan itself which exempts religion from the cognizance of Civil power? Does it not violate justice by at once taking away a right and prohibiting a compensation for it. And does it not in fine violate impartiality by shutting the door agst the Ministers of one religion and leaving it open for those of every other.
The re-eligibility of members after accepting offices of profit is so much opposed to the present way of thinking in America that any discussion of the subject would probably be a waste of time.
Limits of power. It is at least questionable whether death ought to be confined to “Treason and murder.” It would not therefore be prudent to tie the hands of Government in the manner here proposed. The prohibition of pardon, however specious in theory would have practical consequences, which render it inadmissible. A single instance is a sufficient proof. The crime of treason is generally shared by a number, and often a very great number. It would be politically if not morally wrong to take away the lives of all, even if every individual were equally guilty. What name would be given to a severity which made no distinction between the legal & the moral offence—between the deluded multitude, and their wicked leaders. A second trial would not avoid the difficulty; because the oaths of the jury would not permit them to hearken to any voice but the inexorable voice of the law.
The power of the Legislature to appoint any other than their own officers departs too far from the Theory which requires a separation of the great Depts of Government. One of the best securities against the creation of unnecessary offices or tyrannical powers, is an exclusion of the authors from all share in filling the one, or influence in the execution of the others. The proper mode of appointing to offices will fall under another head.
Executive Governour. An election by the Legislature is liable to insuperable objections. It not only tends to faction intrigue and corruption, but leaves the Executive under the influence of an improper obligation to that department. An election by the people at large, as in this & several other States—or by Electors as in the appointment of the Senate in Maryland, or indeed by the people through any other channel than their legislative representatives, seems to be far preferable. The ineligibility a second time, though not perhaps without advantages, is also liable to a variety of strong objections. It takes away one powerful motive to a faithful & useful administration, the desire of acquiring that title to a re-appointment. By rendering a periodical change of men necessary, it discourages beneficial undertakings which require perseverance and system, or, as frequently happened in the Roman Consulate, either precipitates or prevents the execution of them. It may inspire desperate enterprizes for the attainment of what is not attainable by legitimate means. It fetters the judgment and inclination of the Community; and in critical moments would either produce a violation of the Constitution, or exclude a choice which might be essential to the public safety. Add to the whole, that by putting the Executive Magistrate in the situation of the tenant of an unrenewable lease, it would tempt him to neglect the constitutional rights of his department, and to connive at usurpations by the Legislative department, with which he may connect his future ambition or interest.
The clause restraining the first Magistrate from the immediate command of the military force would be made better by excepting cases in which he should receive the sanction of the two branches of the Legislature.
Council of State. The following variations are suggested. 1. The election to be made by the people immediately, or thro’ some other medium than the Legislature. 2. A distributive choice should perhaps be secured as in the case of the Senate. 3 instead of an ineligibility a second time, a rotation as in the federal Senate, with an abrdgmt. of the term to be substituted.
The appointment to offices is, of all the functions of Republican & perhaps every other form of Government, the most difficult to guard against abuse. Give it to a numerous body, and you at once destroy all responsibility, and create a perpetual source of faction and corruption. Give it to the Executive wholly, and it may be made an engine of improper influence and favoritism. Suppose the power were divided thus: let the Executive alone make all the subordinate appointments; and the Govr. and Senate as in the Fedl. Constn:, those of the superior order. It seems particularly fit that the Judges, who are to form a distinct department should owe their offices partly to each of the other departments rather than wholly to either.
Judiciary. Much detail ought to [be] avoided in the constitutional regulation of this department, that there may be room for changes which may be demanded by the progressive changes in the state of our population. It is at least doubtful whether the number of Courts, the number of Judges, or even the boundaries of Jurisdiction ought to be made unalterable but by a revisal of the Constitution. The precaution seems no otherwise necessary than as it may prevent sudden modifications of the establishment, or addition of obsequious Judges, for the purpose of evadg. the checks of the Constn. & giv[in]g effect to some sinister policy of the Legisre. But might not the same object be otherwise attained? By prohibiting, for example, any innovations in those particulars without the consent of that department: or  without the annual sanction of two or three successive assemblies; over & above the other pre-requisites to the passage of a law.
The model here proposed for a Court of Appeals is not recommended by experience. It is found as might well be presumed that the members are always warped in their appellate decisions by an attachment to the principles and jurisdiction of their respective Courts & still more so by the previous decision on the case removed by appeal. The only effectual cure for the evil, is to form a Court of Appeals, of distinct and select Judges. The expence ought not be admitted as an objection. 1. because the proper administration of Justice is of too essential a nature to be sacrificed to that consideration. 2. The number of inferior Judges might in that case be lessened. 3. The whole department may be made to support itself by a judicious tax on law proceedings.
The excuse for non-attendance would be a more proper subject of enquiry some where else than in the Court to which the party belonged. Delicacy, mutual connivance &c. would soon reduce the regulation to mere form; or if not, it might become a disagreeable source of little irritations among the members. A certificate from the local Court or some other local authority where the party might reside or happen to be detained from his duty, expressing the cause of absence as well as that it was judged to be satisfactory, might be safely substituted. Few Judges would improperly claim their wages, if such a formality stood in the way. These observations are applicable to the Council of State.
A Court of Impeachments is among the most puzzling articles of a republican Constitution; and it is far more easy to point out defects in any plan, than to supply a cure for them. The diversified expedients adopted in the Constitutions of the several States prove how much the compilers were embarrassed on this subject. The plan here proposed varies from all of them; and is perhaps not less than any a proof of the difficulties which pressed the ingenuity of its author. The remarks arising on it are 1. that it seems not to square with reason, that the right to impeach should be united to that of trying the impeachment, & consequently in a proportional degree, to that of sharing in the appointment of, or influence on the Tribunal to which the trial may belong. 2. As the Executive & Judiciary would form a majority of the Court, and either have a right to impeach, too much might depend on a combination of these departments. This objection would be still stronger, if the members of the Assembly were capable as proposed of holding offices, and were amenable in that capacity to the Court. 3. The H. of Delegates and either of those departments could appt. a majority of the Court. Here is another danger of combination, and the more to be apprehended as that branch of the Legisl: wd. also have the right to impeach, a right in their hands of itself sufficiently weighty; and as the power of the Court wd. extend to the head of the Ex. by whose independence the constitutil. rights of that department are to be secured agst. Legislative usurpations. 4. The dangers in the two last cases would be still more formidable; as the power extends not only to deprivation; but to future incapacity of office. In the case of all officers of sufficient importance to be objects of factious persecution, the latter branch of power is in every view of a delicate nature. In that of the Cheif Magistrate, it seems inadmissible, if he be chosen by the Legislature; and much more so, if immediately by the people themselves. A temporary incapacitation is the most that cd. be properly authorised.
The 2 great desiderata in a Court of impeachts. are 1. impartiality. 2. respectability—the first in order to a right—the second in order to a satisfactory decision. These characteristics are arrived at in the following modification—Let the Senate be denied the right to impeach. Let ⅓ of the members be struck out, by alternate nominations of the prosecutors & party impeached; the remaining ⅔ to be the Stamen of the Court. When the H: of Del: impeach, let the Judges or a certain proportion of them—and the Council of State be associated in the trial. When the Govr. or Council impeaches, let the Judges only be associated: When the Judges impeach let the Council only be associated. But if the party impeached by the H. of Dels. be a member of the Ex. or Judicy. let that of which he is a member not be associated. If the party impeached belong to one & be impeached by the other of these branches, let neither of them be associated, the decision being in this case left with the Senate alone or if that be thought exceptionable, a few members might be added by the H. of Ds. ⅔ of the Court should in all cases be necessary to a conviction, & the cheif Magistrate at least should be exempt from a sentence of perpetual if not of temporary incapacity. It is extremely probable that a critical discussion of this outline may discover objections which do not occur. Some do occur; but appear not to be greater than are incident to any different modification of the Tribunal.
The establishment of trials by Jury & viva voce testimony in all cases and in all Courts, is to say the least a delicate experiment; and would most probably be either violated, or be found inconvenient.
Council of Revision. A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceived be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: & Judicy. depts. If either of these object, let ⅔, if both ¾ of each House be necessary to overrule the objection; and if either or both protest agst. a bill as violating the Constitution, let it moreover be suspended, notwithstanding the overruling proportion of the Assembly, until there shall have been a subsequent election of the H. of Ds. and a repassage of the bill by ⅔ or ¾ of both Houses, as the case may be. It sd. not be allowed the Judges or the Ex to pronounce a law thus enacted, unconstitul. & invalid.
In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper.
The extension of the Habs. Corps. to the cases in which it has been usually suspended, merits consideration at least. If there be emergences which call for such a suspension, it can have no effect to prohibit it, because the prohibition will assuredly give way to the impulse of the moment; or rather it will have the bad effect of facilitating other violations that may be less necessary. The Exemption of the press from liability in every  case for true facts, is also an innovation and as such ought to be well considered. This essential branch of liberty is perhaps in more danger of being interrupted by local tumults, or the silent awe of a predominant party, than by any direct attacks of Power.


Title: Edmund Randolph to Virginia Delegates, 16 October 1788
From: Randolph, Edmund
To: Virginia Delegates

Gentlemen
Richmond Octr. 16. 1788
Since my late letter to you, inclosing the dispatches, received from Kentucky on the subject of the Scioto lands, we have been requested by one of the superintendants to have a meeting of his associates called for the 15th. of next month. The result of their consultation will probably affect the measures, which we now meditate. It is therefore adviseable, that we should again request you to prevent any definitive steps concerning these lands; and, if it should be necessary, to inform congress, that we have not yet collected every document, which we wish to transmit to congress. We are inclined to believe, that no injury can arise from the postponement of our communications to that body on this subject; as we are told, that seven states are not now upon the floor, and the fœderal year is on the point of expiring. I have the honor gentlemen to be with great respect yr. mo. ob. serv.
Edm: Randolph.


Title: From James Madison to Thomas Jefferson, 17 October 1788
From: Madison, James
To: Jefferson, Thomas

Dear Sir
New York Ocr. 17. 1788
I have written a number of letters to you since my return here, and shall add this by another casual opportunity just notified to me by Mr St. John. Your favor of July 31. came to hand the day before yesterday. The pamphlets of the Marquis Condorcet & Mr. Dupont referred to in it have also been received. Your other letters inclosed to the Delegation have been and will be disposed of as you wish; particularly those to Mr. Eppes & Col. Lewis.
Nothing has been done on the subject of the outfit: there not having been a Congress of nine States for some time, nor even of seven for the last week. It is pretty certain that there will not again be a quorum of either number within the present year; and by no means certain that there will be one at all under the old Confederation. The Committee finding that nothing could be done have neglected to make a report as yet. I have spoken with a member of it in order to get one made, that the case may fall of course and in a favorable shape within the attention of the new Government. The fear of a precedent will probably lead to an allowance for a limited time, of the salary as enjoyed originally by foreign ministers in preference to a separate allowance for outfit. One of the members of the treasury board who ought, if certain facts have not escaped his memory to witness the reasonableness of your calculations, takes occasion I find to impress a contrary idea. Fortunately his influence will not be a very formidable obstacle to right.
The States which have adopted the new Constitution are all proceeding to the arrangements for putting it into action in March next. Pennsylva. alone has as yet actually appointed deputies, & that only for the Senate. My last mentioned that these were Mr. R. Morris & a Mr. McClay. How the other elections there & elsewhere will run is matter of uncertainty. The Presidency alone unites the conjectures of the public. The vice president is not at all marked out by the general voice. As the President will be from a Southern State, it falls almost of course for the other part of the Continent to supply the next in rank. South Carolina may however think of Mr. Rutlidge unless it should be previously discovered that votes will be wasted on him. The only candidates in the Northern States brought forward with their known consent are Hancock and Adams and between these it seems probable the question will lie. Both of them are objectionable and would I think be postponed by the general suffrage to several others if they would accept the place. Hancock is weak ambitious a courtier of popularity given to low intrigue and lately reunited by a factious friendship with S. Adams—J. Adams has made himself obnoxious to many particularly in the Southern states by the political principles avowed in his book. Others recollecting his cabal during the war against General Washington knowing his extravagant self importance and considering his preference of an unprofitable dignity to some place of emolument better adapted to private fortune as a proof of his having an eye to the presidency conclude that he would not be a very cordial second to the general and that an impatient ambition might even intrigue for a premature advancement. The danger would be the greater if particular factious characters as may be the case, should get into the public councils. Adams it appears, is not unaware of some of the obstacles to his wish: and thro a letter to Smith has thrown out popular sentiments as to the proposed president.
The little pamphlet herewith inclosed will give you a collective view of the alterations which have been proposed for the new Constitution. Various and numerous as they appear they certainly omit many of the true grounds of opposition. The articles relating to Treaties—to paper money, and to contracts, created more enemies than all the errors in the System positive & negative put together. It is true nevertheless that not a few, particularly in Virginia have contended for the proposed alterations from the most honorable & patriotic motives; and that among the advocates for the Constitution, there are some who wish for further guards to public liberty & individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light 1. because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted. 2 because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels. 3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other. 4 because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience it is well known that a religious establishment wd. have taken place in that State, if the legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet sufficiently attended to: and is probably more strongly impressed on my mind by facts, and reflections suggested by them, than on yours which has contemplated abuses of power issuing from a very different quarter. Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. The difference, so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt abuses of power in the former than in the latter; and in the security in the former agst. oppression of more than the smaller part of the society, whereas in the former it may be extended in a manner to the whole. The difference so far as it relates to the point in question—the efficacy of a bill of rights in controuling abuses of power—lies in this, that in a monarchy the latent force of the nation is superior to that of the sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and consequently the tyrannical will of the sovereign is not [to] be controuled by the dread of an appeal to any other force within the community. What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution. 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho’ it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst. it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.
Supposing a bill of rights to be proper the articles which ought to compose it, admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighbourhood by Britn: or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security agst. these evils is to remove the pretext for them. With regard to monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments, than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.
I inclose a paper containing the late proceedings in Kentucky. I wish the ensuing Convention may take no step injurious to the character of the district, and favorable to the views of those who wish ill to the U. States. One of my late letters communicated some circumstances which will not fail to occur on perusing the objects of the proposed Convention in next month. Perhaps however there may be less connection between the two cases than at first one is ready to conjecture. I am Dr Sir with the sincerst esteem & Affectn Yours
Js. Madison Jr