Title: Northwestern Land Offices, [3 March] 1796
From: Madison, James
To:

[3 March 1796]

   On 26 January 1796 Smith (South Carolina) reported a bill to establish offices for the sale of land in the territory northwest of the Ohio River and above the mouth of the Kentucky River. Its clauses included the creation of a surveyor general with authority to appoint deputies; rectangular surveys and the division of the land into tracts three miles square; and the price of land fixed at $2 per acre. The purposes of the bill, in Smith’s words, were “to raise revenue and to sell lands in such lots as would be most convenient to purchasers.”

   Between 15 and 19 February the bill underwent intensive scrutiny in a Committee of the Whole, especially with regard to the size of lots to be sold, the methods of sale (fixed price as opposed to auction), and the social desirability of releasing so much land onto the market. On 2 March, Williams (New York), to prevent land being acquired for speculation, moved that if “one actual settler be not on every — acres of land within — years from the sale thereof, it shall return to the Government of the United States, the same as if no such sale had taken place.” The debate continued on 3 March, with Gallatin (Pennsylvania) supporting Williams’s amendment, irrespective of its effects on the westward migration of settlers (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 267, 328–31, 334–37, 338–44, 345–49, 350–55, 402–7, 408–14; see also Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837 [New York, 1968], pp. 17–19; and Payson Jackson Treat, The National Land System, 1785–1820 [New York, 1910], pp. 80–86).

Mr. Madison was not surprised to hear different opinions on this question, according as members felt from the usages of the States to which they belonged. It was difficult to judge precisely betwixt different opinions, from the blanks of the bill not being filled up. Perhaps a good deal depended on the quantity of land to be offered for sale. Purchases made, he said, under a consideration that the land would be speedily settled, would be made at a higher price, and those made under an idea of a considerably distant settlement, would command a price in proportion. The principal object was to fill the Treasury as soon as possible. He believed the obliging of purchasers to settle land within a limited time would be an obstruction in the sale; but there were several considerations which ought to be weighed. If by requiring actual settlers they should repel a part of those who did not intend to settle themselves on the land, they might not repel others. Persons would be more ready to go into a wilderness, if they were assured of company. The amendment would have less effect in repelling large purchasers, than at first imagined. If persons knew when they purchased that they must provide settlers, they will see that a great advantage may arise from their enterprise, and will give a greater price. With respect to the policy of increasing emigration there seemed to be a middle course. It would not be right, he said, to encourage emigrations, nor to throw obstacles in the way of them. He believed, with the gentleman from Pennsylvania, that if they were ever so desirous that emigrations should not take place to that country, it would not hinder them. He was opposed to a greater quantity of land being brought to market than could be settled. The consideration of settlement, he said, would be found to operate much less on the price than was supposed; he knew not whether it would not increase the price. But as the subject was important, and greater light might be thrown upon the business hereafter, he would wish the forfeiture of the land to be struck out, and left to be modified by the select committee.


Title: From James Madison to Thomas Jefferson, 6 March 1796
From: Madison, James
To: Jefferson, Thomas

Dear Sir
Philada. Mar. 6. 1796
I have recd. your’s of  covering a letter to John Bringhurst which has been forwarded to him. There has not been time enough yet for an answer. The letter promised to myself, in yours, has not come [to] hand. The delay can be sufficiently accounted for by the irregularities of the Southern Mails, particularly South of Baltimore.
The Senate have unanimously ratified the Algerine & Spanish Treaties. The latter was a bitter pill to some for two reasons; first as inviting additional emigrations to the Western Country: secondly, as jostling with the Mississippi article in the British Treaties. The Spanish article is in the words following: “It is likewise agreed that the western boundary of the United States which separates them from the Spanish Colony of Louisiana, is in the middle of the channel or bed of the river Mississippi from the Northern boundary of the said States, to the completion of the 31°. of latitude North of the Equator. And his C. Majesty has likewise agreed that the navigation of the said river in its whole breadth from its Source to the Ocean shall be free only to his subjects & the Citizens of the U. States, unless he should extend this privilege to the subjects of other powers by special Convention.” Doubts were expressed by King in the Senate whether this could be construed into a harmony with the stipulations to G. B. and the pulse of the body felt on the subject with a view to a declaratory proviso to the ratification. It was concluded however not to risk the project, and to presume a construction that would avoid the inconsistency. It seems that Pinkney considered the article as admitting a construction reconcileable with the British article. It is also said that he was offered & refused a proposition expressing or implying our right to the navigation, but more directly clashing with the British Treaties.
The President laid the Treaty before the H. of Reps. on tuesday last about one OClock; & in the afternoon it appeared in a Proclamation in Brown’s paper. I am well informed that its publication was concerted with the Printer prior to its communication to the House. Whether an original ratification was recd. as the ground of this proceeding, or the copy heretofore not deemed of sufficient formality has been viewed in a more favorable light I can not undertake to say. I suspect the latter to be the case. Perhaps also the ratification of the Spanish & Algerine Treaties, which contain some stipulations analogous to those complained of as unconstitutional in the British Treaty, may have had weight on the occasion. In general however the Spanish Treaty forms rather a contrast to the British, being more than reciprocal in its essential articles, and on the subject of contraband, & the freedom of goods in free ships, being perfectly satisfactory. A motion has been laid on the table by Mr. Livingston, calling on the President for the instructions to Jay &c. The policy of hazarding it is so questionable that he will probably let it sleep or withdraw it. Notice of direct propositions on the Treaty will probably be given tomorrow. The purport & form of them create much dive[r]sity of ideas among the opponents of the Treaty. The state of the business as it now presents itself, with the uncertainty of the particular way of thinking in several quarters of the House, make it truly difficult to decide on the course most acceptable to the body of anti-treaty members. The other side, of course have no difficulties of this sort to contend with.
The bill for the sale of the back lands makes progress tho’ but slowly. Its fate is very uncertain. The proposed aid to the federal City will probably succeed in the event, under the patronage of the P. but in the mean time will no doubt be played off in favor of the Treaty.
The Court has not given judgment yet on the Carriage tax. It is said the Judges will be unanimous for its constitutionality. Hamilton & Lee advocated it at the Bar, agst. Campbell & Ingersoll. Bystanders speak highly of Campbells argument, as well as of Ingersoll’s. Lee did not shine, and the great effort of his coadjutor as I learn, was to raise a fog around the subject, & to inculcate a respect in the Court for preceding sanctions, in a doubtful case.
We are three month’s without news from France, or even G. Britain. There is a report that one of the Sedition bills has passed the H. of Lords, & is not likely to pass the H. of Commons. There is a paragraph which says that Sweeden & Denmark have prohibited the exportation of Grain. Flour here is abt. 15 dolrs. & Wheat 20/. Adieu Yrs affy.
Js Madison Jr


Title: From James Madison to James Madison, Sr., 6 March 1796
From: Madison, James
To: Madison, James, Sr.

Hond. Sir
Pha. Mar. 6. 1796
In a letter to my brother Wm by last mail I acknowledged yours of the 8th. Feby; previous to which I had written several letters to which I refer on the subject of yours of Jany. 12.
I am sorry to find our crops of Wheat falling so much short. The price it is to be hoped will make some amends. Flour is now up at 15 or 15½ dollars & Wheat at 20/. at least. It would have been convenient to me if my Cart could have been ironed, but it is not essential. I did not understand that any positive agreement with B. Bradburn required him to make me a waggon, I am willing however to have it, as an article that can be put to good use. I hope you will be able to advance him the balance if necessary, as I shall be able to replace it on my return. I do not wish him to have it ironed without further instructions, because I may perhaps get Iron myself here & send it round. The prospect of having the plank sawed for my treading floors gives me much satisfaction.
I have written to Mr. Chew, & given him fully the information stated in your letter. I have no opporty. of learning whether he still lives on Montreal, or indeed be living at all.
The Spanish Treaty has been unanimously ratified by the Senate. The article on the boundary & the navigation of the Mississippi is in the words following
“It is likewise agreed that the West:n. boundary of the U. S. which separates them from the Spanish Colony of Louisiana is in the middle of the Channel or bed of the river Misspi. from the Northern boundary of the said States to the completion of the 31°. North of the Equator. And his C. Majesty has likewise agreed that the navigation of the said river in its whole breadth from its source to the Ocean shall be free only to his subjects & the Citizens of the U. S. unless he shd. extend this privilege to the subjects of other powers by special Convention.”
The British Treaty was laid before the H. of Reps. on tuesday last. It was referred to the Come. of the Whole on the State of the Union. No question has yet been taken on it.


Title: To James Madison from Thomas Jefferson, 6 March 1796
From: Jefferson, Thomas
To: Madison, James

Mar. 6. 96.
I wrote you Feb. 21. since which I have recd. yours of the same day. Indeed mine of that date related only to a single article in yours of Jan. 31. & Feb. 7. I do not at all wonder at the condition in which the finances of the US. are found. Ham’s object from the beginning was to throw them into forms which should be utterly undecypherable. I ever said he did not understand their condition himself, nor was able to give a clear view of the excess of our debts beyond our credits, nor whether we were diminishing or increasing the debt. My own opinion was that from the commencemt of this government to the time I ceased to attend to the subject we had been increasing our debt about a million of D. annually. If mr. Gallatin would undertake to reduce this chaos to order, present us with a clear view of our finances, & put them into a form as simple as they will admit, he will merit immortal honor. The accounts of the US. ought to be, and may be, made, as simple as those of a common farmer, and capable of being understood by common farmers.
Disapproving, as I do, of the unjustifiable largess to the daurs. of the Ct. de Grasse, I will certainly not propose to rivet it by a second example on behalf of M. de Chastellux’ son. It will only be done in the event of such a repetition of the precedent, as will give every one a right to share in the plunder. It is indeed surprizing you have not yet recieved the British treaty in form. I presume you would never recieve it were not your co-operation on it necessary. But this will oblige the formal notification of it to you. I thank you for your information respecting Lownes. There is one article still necessary to be known from mr. Howell. Lownes began with credits of 90. days from the time of the departure of the nailrod from Philadelphia (not his delivery of it to the vessel: for that makes a difference sometimes of many weeks) but he afterwards reduced it to 60. days. What would be mr. Howell’s credits? I know that credits in Virginia startle a merchant in Philadelphia; but I presume that mr. Howel could have confidence enough in me (tho’ not personally known to him) to make a trial, & govern himself afterwards according to the result, & to the punctuality with which he would recieve his remittances. I wish to know this, tho’ I am not yet decided to drop Lownes, on account of his being a good man, & I like much to be in the hands of good men. There is great pleasure in unlimited confidence. My consumption has now advanced from 3. to 4. tons a quarter. I call for a quarter’s supply at once, so that the last quarter’s supply is always paid for before the next is called for, or at the very time. The Spanish treaty will have some disagreeable features, seeds of chicanery & eternal broils, instead of peace & friendship. At a period not long before that, they had been ready to sign one giving us vastly more than we had ever contemplated; particularly in our intercourse with their W. Indies. I by no means think of declining the work we have spoken of. On the contrary, I wish with ardor to begin it, since the change of form into which I propose to put it: the first ideas had always oppressed me from a consciousness of my want both of talents & materials to execute it. But it will be impossible for a year to come; and I am not certain whether, even after the present year, I shall not be obliged to put my farms under such direction as that I should be considered as not here as to them, while I should be here as to my papers. My salutations to mrs. Madison: friendly esteem to mr. Giles, Page &c.
P.S. Have you considered all the consequences of your proposition respecting post roads? I view it as a source of boundless patronage to the executive, jobbing to members of Congress & their friends, and a bottomless abyss of public money. You will begin by only appropriating the surplus of the post-office revenues: but the other revenues will soon be called in to their aid, and it will be a scene of eternal scramble among the members who can get the most money wasted in their state, and they will always get most who are meanest. We have thought hitherto that the roads of a state could not be so well administered even by the state legislature as by the magistracy of the county, on the spot. What will it be when a member of N. H. is to mark out a road for Georgia? Does the power to establish post roads given you by congress, mean that you shall make the roads, or only select from those already made those on which there shall be a post? If the term be equivocal, (& I really do not think it so) which is the safest construction? That which permits a majority of Congress to go to cutting down mountains & bridging of rivers, or the other which if too restricted may refer it to the states for amendment, securing still due measure & proportion among us, and providing some means of information to the members of Congress tantamount to that ocular inspection which even in our county determinations the magistrate finds can not be supplied by any other evidence? The fortification of harbours was liable to great objection. But national circumstances furnished some color. In this case there is none. The roads of America are the best in the world except those of France & England. But does the state of our population, the extent of our internal commerce, the want of sea & river navigation, call for such expence on roads here, or are our means adequate to it? Think of all this and a great deal more which your good judgment will suggest, and pardon my freedom.


Title: From James Madison to Arnold Henry Dohrman, ca. 6 March 1796
From: Madison, James
To: Dohrman, Arnold Henry

Letter not found. Ca. 6 March 1796. Acknowledged in Dohrman to JM, 11 Mar. 1796. Concerns Dohrman’s debt to Philip Mazzei.


Title: To James Madison from James Hickley, 7 March 1796
From: Hickley, James
To: Madison, James

Sir,
Balte. March 7th. 1796.
I last month call’d on Coln. Madison, Orange County, on my return from Virginia & was requested by him to write to you the result of a commission he gave me concerning some business I had to transact for him here—which was as follows: I was to call on Mr. Robb of Baltimore to enquire if he had recd. advice from Mr. Dunbar of Norfolk respecting some cash, which I understood that Gentn. was to receive & out of which I was to be paid for 2 pr. of 5 Feet Burr Millstones which he bespoke of me. Mr. Robb inform’d me he had not heard from Mr. Dunbar on the subject, but was in daily expectation of a letter.
The Coln. also requested me to look out a pr. of 4 Feet Colognes & inform you of the price—&c. There are not in Balte. a pr. of that diameter but 4. Feet 4.’s and 4. Feet 3. Inchs. of excellent quality the price of either size 52 £. 10S. For the size of 4. Feet (were they to be had) 30 £.
I was likewise to make enquiries concerning a Miller—a good managing hand, capable of undertaking the charge of a Merchant Mill—& find their terms are from 80 to 100 £ pr. year.
Thus far I have endeavour’d to discharge my commission, & with respect to the Burr’s hope to have them ready agreeable to appointment & also hope they may prove satisfactory. I am Sir, with much respect Your Oblig’d Hble. Servt.
James Hickley


Title: Jay’s Treaty, [7 March] 1796
From: Madison, James
To:

[7 March 1796]

   After Washington proclaimed the Jay treaty to be ratified on 29 February and sent it to Congress the next day, Livingston (New York) opened the Republican attack on 2 March by calling for Jay’s correspondence and instructions. The House seemed reluctant to take up the issue, so Livingston raised it again, on 4 and 7 March, the second time amending his original motion to except such papers “as any existing negotiation may render improper to be disclosed.” Commencing the debate on 7 March, Federalist speakers opposed Livingston’s request and questioned his motives for making it, implying that he wished to derange the government or possibly even to impeach the president. Livingston and his Republican colleagues argued that they sought information only (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 400–401, 419, 424, 426–37).

Mr. Madison admitted that every proposition however distantly related to a question on the Treaty, drew from the importance of that subject considerable importance to itself. In a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to decorum, delicacy to the other departments of government, and at the same time fidelity and respect for his constituents. The proposition now before the house, he conceived, might be considered as closely connected with this important question: Whether the general power of making treaties supercedes the power of the house of representatives particularly specified in the Constitution, so as to take to the executive all deliberative will, and leave the house only an instrumental agency? He was not satisfied whether it was expedient at this time to go into a consideration of this very important question. If gentlemen were not disposed to press it, he would attempt to throw the resolution into such form as not to bear even the appearance of encroaching on the constitutional rights of the executive. The resolution, in the form in which it was first presented, was liable to objection. The mover had removed that objection, by adding an exception to it. He wished to submit, whether the resolution would not be further improved by introducing the following words in lieu of those proposed in addition by the member from New-York: “Except so much of said papers as, in his judgment, it may not be consistent with the interest of the United States at this time to disclose.” He moved those words as an amendment after striking out those brought forward by the gentleman from New-York.


Title: Jay’s Treaty, [10 March] 1796
From: Madison, James
To:

[10 March 1796]

   After JM’s amendment to Livingston’s motion was lost, the House resumed its discussion of the same, with Giles (Virginia) referring it to a Committee of the Whole for more extended debate. This continued on 9 and 10 March (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 438, 441–87).

Mr. Madison said that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.
On some points there could be no difference of opinion; and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people: that the Constitution, as the expression of their will, is the guide & the rule, to the Government; that the distribution of powers made by the Constitution, ought to be sacredly observed by the respective Departments: that the House of Representatives ought to be equally careful to avoid encroachments on the authority given to other departments, and to guard their own authority against encroachments from the other departments: These principles are as evident as they are vital & essential to our political system.
The true question, therefore, before the Committee, was not, whether the will of the people expressed in the Constitution was to be obeyed; but how that will was to be understood; in what manner it had actually divided the powers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit & object.
On comparing the several passages in the Constitution, which had been already cited to the Committee, it appeared, that if taken literally and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money &c &c, are first specifically vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution, and the laws of the U. States made in pursuance thereof, and Treaties made or to be made under the authority of the U. States shall be the supreme law of the land: and the judges, in every State, shall be bound thereby, any thing in the Constitution or laws of any State, to the contrary notwithstanding.
The term supreme, as applied to Treaties evidently meant a supremacy over the State Constitutions and laws, and not over the Constitution & laws of the U. States. And it was observable that the Judicial authority & the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States or to laws requisite to be passed by the States, for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the States.
It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the Constitution, that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy & fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.
He stated the five following, as all the constructions worthy of notice, that had either been contended for, or were likely to occur.
I. The Treaty-power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.
II. As concurrent powers relating to the same objects; and operating like the power of Congress, & the power of the State Legislatures, in relation to taxes on the same articles.
III As each of them supreme over the other, as it may be the last exercised; like the different assemblies of the people, under the Roman Government, in the form of Centuries, & in the form of Tribes.
IV The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the Committee, as both unlimited in its objects, and compleatly paramount in its authority.
V. The Congressional power may be viewed as co-operative with the Treaty-power, on the Legislative subjects submitted to Congress by the Constitution; in the manner explained by the member from Pennsylvania (Mr. Galatin) and exemplified in the British Government.
The objection to the First construction is, that it would narrow too much the Treaty-power, to exclude from Treaties altogether, the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprized in the important compacts which take place between nations.

The objection to the Second is, that a concurrent exercise of the Treaty, & Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the Constitution presumed that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power & the power of Congress. A Treaty of commerce for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.
To the Third, the objection was equally fatal; that it involved the absurdity of an Imperium in imperio; of two powers both of them supreme, yet each of them liable to be superseded by the other. There was indeed an instance of this kind found in the Government of Ancient Rome, where the two Authorities of the Comitia Curiata, or meetings by Centuries and the Comitia tributa or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other: For altho the people composed the body of the meetings in both cases, yet as they voted in one according to wealth, and in the other according to numbers, the organizations were so distinct as to create in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other Country.
The Fourth construction is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty-power all the latitude which is not necessarily prohibited by a regard to the general form & fundamental principles of the Constitution.
In order to smooth the way for this doctrine, it had been Said, that the power to make treaties was laid down in the most indefinite terms; & that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have: for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration that a foreign nation agrees to pass a like act, or on any other consideration.
It must be objected to this construction therefore that it extends the Power of the President & Senate too far, and cramps the powers of Congress too much.
He did not admit, that the term “Treaty” had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a Technical term, and its meaning was to be sought for in the use of it, particularly in Governments which bore most analogy to our own. In absolute Governments, where the whole power of the Nation is usurped by the Government, and all the Departments of power are united in the same person, the Treaty power has no bounds, because the power of the Sovereign to execute it has none. In limited Governments, the case is different. The Treaty power, if undefined is not understood to be unlimited. In Great Britain it is positively restrained on the subjects of money, and dismembering the Empire. Nor could the Executive there, if his recollection was right, make an Alien a subject by means of a Treaty.
But the question immediately under consideration, and which the context & spirit of the Constitution must decide, turned on the extent of the Treaty-power in relation to the objects specifically & expressly submitted to the Legislative power of Congress.
It was an important, & appeared to him to be a decisive view of the subject, that if the Treaty-power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, borrow, and appropriate money, &c. If by Treaty therefore, as paramount to the Legislative power, the President & Senate can regulate Trade; they can also declare war; they can raise armies to carry on war; and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution, and must share the same fate. A member from Connecticut (Mr. Griswold) had admitted that the power of war, was exclusively vested in Congress; but he had not attempted, nor did it seem possible, to draw any line between that, & the other enumerated powers. If any line could be drawn, it ought to be presented to the Committee; and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed: and therefore should submit to the serious consideration of the Committee, that although the Constitution had carefully & jealously lodged the power of war, of armies, of the purse &c. in Congress, of which the immediate representatives of the people, formed an integral part; yet, according to the construction maintained on the other side, The President & Senate by means of a Treaty of alliance with a nation at war, might make the United States parties in the war: they might stipulate subsidies, and even borrow money to pay them: they might furnish Troops, to be carried to Europe, Asia or Africa: they might even undertake to keep up a standing army in time of peace, for the purpose of co-operating, on given contingences, with an Ally, for mutual safety or other common objects. Under this aspect, the Treaty power would be tremendous indeed.
The force of this reasoning is not obviated by saying that the P. & Senate would only pledge the public faith & that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be as is alledged, a constitutional one; if Congress have no will but to obey, & if to disobey be Treason & rebellion against the Constituted Authorities. Under a constitutional Obligation, with such sanctions to it, Congress, in case the P. & S. should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact it had been said that they must obey the injunctions of a Treaty as implicitly as a subordinate officer in the Executive line was bound to obey the chief Magistrate; or as the Judges are bound, to decide according to the laws.
As a further objection to the doctrine contended for, he called the attention of the Committee to another very serious consequence from it. The specific powers, as vested in Congress by the Constitution, are qualified by sundry exceptions deemed of great importance to the safe exercise of them. These restrictions are contained in §IX of the Constitution, and in the articles of amendment which have been added to it. Thus “the migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress.” He referred to several of the other restrictive paragraphs which followed, particularly the 5th. which says that no tax shall be laid on exports, & no preference given to ports of one State over those of another &c. It was Congress also he observed which was to make no law respecting an establishment of Religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, &c &c. Now if the legislative powers specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers, could be no limitation or check to the Treaty power.
Returning to the powers particularly lodged in Congress, he took notice of those relating to war & money, or the sword & the purse as requiring a few additional observations, in order to shew that the Treaty power could not be paramount over them.
It was well known that with respect to the regulation of Commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether & how far it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged & exercised as a branch of the General Authority, essential to the public safety. The only question therefore that could arise, was whether the power should be lodged in this or in that Department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive Department; with a view, no doubt, to guard it against the abuses which might be apprehended from placing the power of declaring war, in those hands which would conduct it when declared, and which therefore in the ordinary course of things would be most tempted to go into war. But according to the doctrine now maintained, the United States, by means of an Alliance with a foreign power, might be driven into a State of war, by the President & Senate, contrary both to the sense of the Legislature, & to the letter & spirit of the Constitution.
On the subject also of appropriating money, particularly to a military establishment, the provision of the Constitution demanded the most severe attention. To prevent the continuance of a Military force for a longer term than might be indispensable, it is expressly declared that no appropriation for the support of armies shall be made for more than two years: so that at the end of every two years, the question whether a military force ought to be continued or not, must be open for consideration, and can be decided in the negative by either the House of Representatives, or the Senate’s refusing to concur in the requisite appropriations. This is a most important check & security agst. the danger of standing armies, & against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as at the end of every two years, a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Represents. have no right to deliberate on appropriations pledged by the President & Senate, and cannot refuse them, without a breach of the Constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if at the expiration of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, & two appropriations for two years each, the second of which the two Houses would be constitutionally obliged to make.
It had been said that in all cases a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general he denied that it could be applicable to the case in question. By the provision of the Constitution limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it, must be necessarily repealed, before an appropriation could be witheld, it would be in the power of either Branch to keep up an establishment by refusing to concur in a repeal. The construction and reasoning therefore opposed to the rights of the House, would evidently defeat an essential provision of the Constitution.
The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these, formed the State Governments, the other the Federal Government. The powers of the Government had been further divided into three great Departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power, were seen also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit & controul the Treaty-making power, rather than towards one that would make it omnipotent.
He came next to the Fifth Construction which left with the President & Senate the power of making Treaties, but required at the same time the Legislative sanction & co-operation, in those cases where the Constitution had given express & specific powers to the Legislature. It was to be presumed that in all such cases, the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstance of the existence of the Treaty. Still, however, this House in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in Legislation. If it must, carry all Treaties into effect, it would no longer exercise a legislative power: it would be the mere instrument of the will of another Department, and would have no will of its own. Where the Constitution contains a specific & peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the Departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one Department of Government interferes with a power expressly vested in another and no where expressly taken away. Here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation & discretion which is essential to the nature of Legislative power.

It was said yesterday that a Treaty was paramount to all other Acts of Government, because all power resided in the people, and the President & Senate, in making a Treaty, being the Constitutional organs of the people for that purpose, a Treaty when made was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the President & Senate can be in making Treaties; and laws, when made are as much the acts of the people, as any acts whatever can be.
It had been objected, that the Treaty-power would be in fact frustrated, if Treaties were to depend in any degree on the Legislature. He thought there was no such danger. The several powers vested in the several Departments form but one Government; and the will of the nation may be expressed thro’ one Government, operating under certain checks, on the subject of Treaties, as well as under other checks on other subjects. The objection would have weight if the voluntary cooperation of the different States was to be obtained.
Another objection was that no Treaty could be made at all, if the agency of Congress were to concur, because Congress could not Treat, and their Agency would not be of a Treaty nature. He would not stop to enquire how far a loan of money from a foreign Government, under a law of Congress, was or was not of the nature of a public Contract or Treaty. It was more proper to observe, that the practice in G. Britain was an evidence that a Legislative Agency did not viciate a Treaty. Nay, if the Objection were solid, it was evident that the Treaty lately entered into with that Nation, could never be binding on this; because, it had been laid before the Parliament for its Legislative agency as necessary to effectuate the Treaty; and if that agency was to viciate & destroy the nature of the Treaty on that side, the obligation, on the principle of all contracts, would be dissolved on both sides.
He did not see the utility in this case of urging, as had been done, a particular distrust of the House of Representatives. He thought the President & Senate would be as likely to make a bad Treaty, as this Branch of the Government would be to throw obstructions in the way of a good one, after it was made.
No construction he said might be perfectly free from difficulties. That which he had espoused, was subject to the least; as it gave signification to every part of the Constitution, was most consistent with its general spirit, and was most likely in practice to promote the great object of it, the public good. The construction which made the Treaty power in a manner omnipotent he thought utterly inadmissible, in a Constitution marked throughout with limitations & checks.
He should not at present he said, enter any further into the subject. It had been brought before the House rather earlier than he had expected or than was perhaps necessary; and his observations therefore might not have been as full or as well digested, as they ought to have [been]; such as they were he submitted them to the candid attention of the Committee.


Title: To James Madison from Arnold Henry Dohrman, 11 March 1796
From: Dohrman, Arnold Henry
To: Madison, James

Newyork 11e. March 1796
In reply to yr. favr. I have the honr. to say, that in complyance with yr. request, I have informed my self of the rate of Damages & Interest on protested Bills usual in this City & find that there are two ways, and to comply with my desire to settle with Mr: Mazzei on the most liberall terms; I have choosen that which favours the most the Interest of Mr. Mazzei, of which I have send a statement to Messrs. Pragers—if I offered to settle according to the Virga. costume it originated from a persuasion, that it was more favoravel to Mr. Mazzei, but since I am mistaken, I heartely wish to comply with the Newyork usance—as I am inclined to comply with terms which are equally liberal & Just, I hope that the indulgence you have shewn me will be no reproach to you, for my part I shall for ever remember your humanity & beg you to be persuaded, that nothing can give me more pleasure than to obey any commands with which you may please to honour me, your prosperity shall for ever Interest me & my good wishes shall never cease to accompany you, with great estem I remain Sir Your oblidged humble Servant
Arnd. Henry Dohrman


Title: From James Madison to James Madison, Sr., 13 March 1796
From: Madison, James
To: Madison, James, Sr.

Hond Sir
Pha. March 13. 1796
I have recd. your’s of Feby 24. I am glad that Majr. Lee has so kindly undertaken to attend to the friendly suit for adjusting the share I have in the lands held in the name of my late brother. I can lay down no rules for him which will not occur to himself. The object being simply to vest in me legally what is mine in equity, he will perceive that a suit in equity is necessary, that a good lawyer (say Col. Nicholas) is to be employed to commence & conduct it, and that all the evidence to be found in existing papers, & the depositions of persons who can give other evidence, are to be made use of. For this purpose it will be proper for him to carry with him the patents, which the Lawyer may perhaps want in order to define the case, and to name to the Lawyer the persons whose depositions can be useful. I wish the proper steps to be taken not only for establishing my right, but for a partition of the land also. With respect to the land on Sandy, It will be practicable perhaps to have the patents so taken out, & the surveys so entered, as to divide Nelly’s interest & mine, without the expence & trouble of a suit for the purpose. If it should be necessary for Majr. Lee to take with him any fees for the Counsel to be employed, I must get you or Mr. Dunbar to advance the money. I have already mentioned to you that I have procured here a draught on Kentuckey in favor of Mr. H. Taylor, which will be applicable to your as well as my purposes. Present my respects & thanks to Majr. Lee, if he be with you, particularly for his kindness in having the land on Sandy surveyed, of which Mr. Hubbard Taylor’s letter gave me the information. As to the suit necessary for the concurrence of Nelly in making a title to Col. R. Taylor, he (Col. Taylor) will himself know the steps to be taken; and I wrote to him from Orange on the subject of making a title to Nelly & myself for the tract of land due from him. If this can not be so made as to separate my interest from hers, a further friendly suit must be commenced in my behalf agst. her, which I must request the favor of Majr. Lee also to have conducted. I forgot to answer your question about the pamphlet. Majr. Lee is perfectly welcome to a few of them; or rather as many as he may wish for himself, & can carry conveniently to his friends.
I am pleased with the manner in which Ths. Jones has paid himself. Mr. Twyman may rely on a punctual payment of the interest as long as the principal shall be unpaid.
I am somewhat at a loss on the subject of Corn for Black Meadow. I hold it for certain that it will continue to rise at least till Harvest, & perhaps longer. To take my brother Williams Corn at the current price now may therefore deprive him of a higher, & to wait for his or Mr. Daniels at a higher price hereafter when they may chuse to sell, will be a loss to me. If my brother is obliged to sell now; I will take about 20 barrels or more; provided you can draw the money from Mr. Dunbar, or otherwise get it, to be replaced on my return. If my brother does not chuse to sell at the present price, & you can get it in the neighborhood on credit till I return, or can make out through Mr. D. to advance the money, I shall be glad to have the same quantity at least provided. I repeat that I hold it for certain that the price will get higher & higher. My horses at Black Meadow must be fed so as to be kept properly up. If Collins has not sold or used his Hay, I will take it of him; as well as his corn at the price paid to others. If my rye should turn out pretty well, that will be a great resource after harvest. I hope also the crop of Irish potatoes at Black Meadow as well as Sawney’s will have been made to assist the Corn-House. Be so good as to direct large crops of this article to be planted at both places, the ensuing season; & I recommend the same plan for yourself. Majr. Hite writes me that he last year planted in the drilled method 7. Acres of exhausted land, manured in the drills with 170 waggon loads of manure, (about 25 loads to the acre) and obtained 1560 bushels (about 222 bushels to the acre): which at 1/6 per bushel is £117 or £16.14.3 per Acre. Does it not deserve consideration whether you had not better apply your crop of manure to potatoes than to corn.
You have been particularly lucky in getting your Clover seed at 50/. The ordinary price is at least double. I shall be much obliged for whatever you may be able to spare me. I have, as written you, taken steps to get more seed from Fredericksburg, but have not been informed of the result. The Fields & the order in which they are to be preferred, are as follows—
1. The field at Black M. cleared last winter & now in Rye, to be sowed with Timothy & Clover mixed, as heretofore explained. 2. Next, the field at Lewis Collins’, with Clover alone. 3. Lastly, the half of the great field in Wheat & Rye adjoining Coleby Cowhered, as it is to be divided by a fence running from the meadow fence to the road fence, just on the lower or North side of the meadow ground last spring in Oats. This meadow ground is to be again in Oats (if the Timothy sown last spring with the oats has failed) and I wish a mixture of Clover & Timothy to be sown with the oats. At Sawney’s I wish the little field opposite your new Ground to be sown in Clover alone or mixt with Timothy, the proportion of Timothy to be increased along the bottom adjoining the little spot of meadow in the field: It will be desirable if the seed will hold out, to sow the other field also now in Wheat, under the same inclosure. 2. [sic] After these fields, I wish the Western & more worne half of the field lying on the South side of the Mountain towards Mr. Merry’s to be sown in Clover alone; and the ground near the Stable intended for oats, I wish to be likewise sown with Clover along with the Oats. In general it is to be understood that B. Meadow is to be first served, because that is the place which needs most & is best arranged for, the recruiting effect of Clover: & that whether Clover can or can not be got, in sufficient quantity, all the Timothy seed on hand is to be sown on the fields, giving preference to the richer parts of them, on which Timothy will make good pasturage of dry years, & tolerable hay of moist ones.
I do not think it advisable to rent the House to the Carpenter. If He would be a fit hand, might it not be well to engage him to work by the year, according to our plan of building Houses at the Mill-ford?
The House of Reps. are at length embarked in the discussion of the British Treaty. According to the present appear[ances] a majority will vote that Congs. have a constitutional right to refuse to pass the laws necessary for carrying it into execution. It will be a subsequent & distinct question whether that right shall or shall not in the present case be exercised.
We remain without any late authentic news from Europe. Accts. which are credited, say that the British armament is arriving in the West Indies, which will co-operate with other circumstances in keeping up if not raising the price of provisions in this Country. Flour continues abt. 15 dollrs. per barrel.
Dolley wrote to my mother a few posts ago, and joins me in dutiful affections to you both. It is impossible to guess the time of our liberation from this place. I am extremely anxious to see it arrive. Yr. Affece. son
Js. Madison Jr.


Title: From James Madison to Thomas Jefferson, 21 March 1796
From: Madison, James
To: Jefferson, Thomas

Dear Sir
Philada March 21. 1796
At the desire of Mr. de Liancourt, I put into his hands this introduction to your remembrance of him as an acquaintance at Paris. He meditates a visit to the Southern States, and expects to have the pleasure of taking Monticello in his route, either in going or returning. I need add nothing to your knowledge of his respectability & virtues, I shall only say that the impression I have of both, induces me to concur cheerfully in the use he now makes of me. With the highest esteem & regard I am Dear Sir Yrs. Affecly.
Js. Madison Jr


Title: Notes for Speech in Congress, [ca. 23 March–2 April] 1796
From: Madison, James
To:

Editorial Note
These notes present a difficult editorial problem insofar as their contents do not clearly establish a structure for any of the three major speeches JM delivered during the Jay treaty debates in March and April of 1796. The notes cannot have served as JM’s preparation for his speech of 10 March since their organization, as well as other internal evidence (see nn. 4, 5, and 9, below), suggests that JM could not have begun drafting them until the House debate on Livingston’s resolution was well advanced, if not actually completed. Moreover, with the exception of the points included under his heading of “Cotemporary evidence,” JM drew on very little of this material for his speech of 6 April on the two resolutions presented by Thomas Blount, while that speech, in turn, discussed many topics not included in these notes. And if JM made any preparations for his 15 April speech on the merits of Jay’s treaty, it was probably by recalling to his mind the arguments he had written out in September 1795 for the petition to the General Assembly of Virginia. The structure of JM’s argument, if not the exact wording, in his final speech on Jay’s treaty is very similar to that found in the document he had so painstakingly penned in the fall of 1795.
Given the marked differences between these draft notes and any of the reported versions of the speeches JM actually delivered, there is the possibility that these notes were made for a speech that was never given, at least certainly not along the lines JM was considering as he compiled them. JM himself, in his speech of 6 April, provided one clue that this could have been the case when he mentioned that he had intended to speak again in the debate on Livingston’s resolution but was prevented from doing so by its “sudden termination.” JM’s remarks on 6 April, however, suggest only that he had wished to speak again in order to respond to demands, made repeatedly by several Federalists during the March debate, that he and Abraham Baldwin of Georgia inform the House about the true intentions of the 1787 Federal Convention as to which branches of the government were to be entrusted with treaty-making powers. Yet only one section of JM’s notes—that under the heading of “Cotemporary evidence”—seems to address this particular problem, and it does so by reference to the debates in three state ratifying conventions rather than to the proceedings of the Federal Convention itself. Furthermore, the notes, considered as a whole, seem more wide-ranging than would have been necessary had JM only wished to respond to Federalist allegations that he was guilty of political inconsistency in changing his mind on these issues between 1789 and 1796.
There remains, therefore, the possibility that JM had some uses for these notes that may not have been fully realized. That hypothesis seems all the more plausible if it is recalled that after the passage of Livingston’s resolution in the House on 24 March, the Jay treaty debate did not take the course that JM and other Republican leaders had anticipated. The correspondence of JM, John Beckley, and Edward Livingston in mid-March 1796 establishes quite clearly that they expected the debate on Livingston’s resolution to be followed by the introduction of two further resolutions on the right of House members to refuse legislation for treaties containing provisions that encroached on their constitutionally defined duties. These two resolutions were never presented in the form that the House Republican leaders seem to have contemplated, largely because Washington’s refusal to comply with the call for Jay’s papers so disturbed the fragile antitreaty coalition in the House that JM felt obliged to consolidate a majority for any future vote on the treaty by persuading the House, in the debate on the two resolutions presented by Thomas Blount on 6 April, that its members had been within their rights to request Jay’s papers in the first place.
To some extent, JM and the Republican caucus that met on 2 April attempted to salvage something of this earlier strategy by incorporating into the first of Blount’s resolutions a declaration to the effect that the House had a “right and duty” to deliberate on the expediency of legislating for treaties that stipulated “regulations on any of the subjects submitted by the Constitution to the power of Congress.” But a debate on the right to call for information was a very different matter from one that would have asserted a clear constitutional basis for the House to reject appropriations or any other measures necessary to implement the Jay treaty, and it was probably for this reason that JM seems not to have used much of the material contained in these notes. At the most, he seems to have adapted only some of their contents for his speech of 6 April as part of his response to the situation arising from Washington’s refusal to deliver Jay’s diplomatic papers to the House.

[ca. 23 March–2 April 1796]

The Patrons of the Treaty power take part of Constn;
—–Easy to say. P. & S. have power to Treaty—& treaties supreme laws.

—–Equally easy to say Congs. have power to legisl: & their acts laws.

—–Apparent collision the most they can pretend to.

Difference of opinion
1. as to extent of Treaty power—

2. as to the nature of the Oblign. on Congs.

—–The prevailing opinion is

—the power unlimited, &
}
so as

—the obligation inviolable

—to supersede all existing laws, &

—to make Congs. ministerial in providing new laws.

—–If this high & paramount operation belong to Treaties—it must proceed either
1—from the nature of the Treaty & Legisl: powers;
2—from the terms of the Constitution, or
3—from some palpable absurdity or grievous inconveniency of the contrary doctrine

1. Not from the nature of Treaty making, & law making power
—–In general law—the highest exertion of power & the legisl: supreme over other Departs.

—–No instance where Treaty power is not vested in the Legislure, as Sweeden—Poland—Venice—France—Spain—

—–except G. B. where limited to verge of Prerogative
   See Vattel p. 210 & 211 p 394 & 5

—–In Govt. of U. S.—lawmaking power in some respects superior & directory—in no respect less than co-ordinate with other Depts.

—–Case of repealg. a law—
—of the same specific nature & force
—repeal equipollent to enactment when repealg or suspending law repealed.

Besides then, the objection to 2 supremes one capable of annulling the other—it is inconsonant to const:l. principles generally & to the spirit of our own, that ⟨laws⟩ be repeald but by law
—–Contended that Treaty power relates to a new Region of Legislation—embraces new objects—& operates in new modes.

—–Then can not interfere with the Region, the objects or the modes, of Congressl. legislation.

But, if Treaties are to have the force given to them—
—they operate within the sphere of Congs.
—they operate on the same objects—e.g. on commerce

—they operatein the same mode
by the same officers
under the same sanctions
with the same results.

It is true that they are distinguished by the circumstance of mutuality—but this consideration or inducement only—not change in the operation itself.

Not even mutuality—as commercial laws—for money

A law—in pursuance of contract, domestic or foreign, law

>From this view—the nature of the case, no argument.
>see State Treaties—& compacts—can these repeal laws of U. S.?
2. Does not proceed from the terms of the constitution
—–if it does, obey—but, should be clear.

—–General & Specific Grant to be otherwise expounded

—–See the text—Constitution, laws & Treas. to “land”—no superiority expresd—contrary implied.
—–True meaning—Const: laws conformable to it—& Treaties consistent with both—genl. code, supreme law

—–This the meaning if text stopt there—but followg words preclude every other.

—–To express subordination of State laws—& not fedl. laws—where less dbtful—exempts the latter.

Maryd. Va. & No. Ca. amends.
—–See Ratifications—p. 15–19–25. for sense of those States, as to fundl. & unalienable rights.

—–See also p. 29—art 23d. for sense of N. C. as explained by Mr. Holland.
3. Does it proceed from palpable absurdity, or grievous inconveniency?

—Unity in Govt. remains
—inconveniency of conflicting authorities the other way
—Foreign Govt. bound to know ours.

It is said—that Congress have no legislative Agency, in case of Treaties, because if Const:n. silent, not devolve on them.

—–All States, where Legisl. & Ex. separate give the power—except G. B.
—–Congs. can pledge faith, as to money &c
—–States can make compacts, by Legislres.
—–Congs. not Ex. consent to them.

☞ If Congs. had power to treat—cd. they supersede the specified powers of the Executive.
But if Congs. can’t treat, can alone legislate & as when they want Treaty, depend on Ex. so when laws wanted—Ex. depend on Congs.

Said that Parlt. extorted from Prerogve. that this the worst part of that Govt. that no negative on Treaties but one and that interference with Treaties, only for inns & outs
—–Tory doctrine & not true, K. & Coms. both extort from order of Nobles

—–best part of that Govt.—if King by treaty as wth Hanovr. cd. bring troops into G. B.
—fatal to the Legisl: & to liberty.
—–if no interference, for same reason as no negative—Royal influence
—–if to impeach & supplant—execute Treaty first—discuss it afterwards.

Old Confederation
—Obscurity & irregularity—its characters
—No specific investment of powers in States
—Supremacy over State laws, now specified, now over Congs.
—Unity of Govt. now—then variety of Govts.
Cotemporary evidence
—heretofore demurred to as on
   Mr. Coit Williams

—Bank
—Carriage tax
—suability of States

But ready to meet it—Virga. Debates
—J. M. Vol. 2. p. 137—Vol 3. p. 82–84–93–94–95.
—G. N. Vol. 3. p. 83–84–86–87.
—Corbin Vol 2. 152—Vol. 3. 89–90
—E R—Vol 3–85.

2 ideas
—Treaty power limited

—reference to British Model

N. Carolina Debates—p. 152–153
Pena. do—same illustration by Brit: Model

Ratifications &c. p. 3–5–13–16–18 & 19–21–25–27–29.

These explanatory, as well as alterative & inconsistent with idea of giving war &c. to P. & S.

Case of Small States.

House of Reps. less responsible &
—longer the power & fewer the hands more interest in it—more object of foreign seduction
—–tendency to encroachts. to be tested by
—foreign experience—in popular—in limited Govts

—domestic experience
—further opportunities & prospects.

Objections
1. If War Ex. prerogve. then three powers of war
2. Treaty power extend to all powers of Congs
3. Restrictions on Congs—none on Treaties
4. Case of appropriations the stronger—as the check is reserved to the people, who can chuse new members—every two years—

Not conceivable that people so jealous of the sword & the purse, shd. have intended to put both into the hands of P. & S.—& make Congress
—the mere heralds to proclaim war
—the agents—to recruit armies
—& the Cashiers, to pay out the money for them.


Title: To James Madison from James Monroe, 24 March 1796
From: Monroe, James
To: Madison, James

Dear Sir
Paris March 24. 1796.
I have not recd. a line from you since June last altho’ I have written you vols.:
In my last I communicated to you that this govt. had resolved to send an Envoy Extry. to the U. States to complain of our treaty &ca with Engld. & from wh. it had been diverted (if it is diverted as I presume it is) by my earnest representations agnst it, but that it was still dissatisfied & wod. complain in strong terms agnst several of our measures thro the ordinary channel. The publication of Mr. Rs: defense, the Presidents Speech, & the lately acquired possession of a letter from the president to G. Morris said to be of an extraordinary kind considering the parties gave a new stimulus to discontents that existed before. I have seen in this proceedure a prospect of the probable disunion of the two countries & labour’d with the utmost efforts of wh. I was capable to prevent it, & I think with some effect. I have in consequence been led into a discussion with the minister of foreign affrs of Mr. Jay’s treaty & of answering the objections of this govt. to it: a task you will readily admit not of a pleasant kind, but unavoidable in the place I hold. I hope my correspondence in this case, will not be published as was done in regard to the Jacobin Clubs, & every other part of it omitted. If it is done the highest injustice will be done me, & if the other parts are not called for by the H. of R. the omission will surprize me.
I write you this in great haste & therefore cannot go into many details I otherwise wod. by the bearer who will deliver it in person. I have written the president the above incident respecting himself so that he knows it but I have added nothing to the communication.
Dr. Brokenborough will deliver this; a sensible young man & to whom I refer you for further intelligence.
Remember me to our Senators, to Giles & other friends in the other house, Butler & Brown &ca in the senate to Beckley to whom I have written often lately.
You have clearly proved to the whole world that yr. virtue is impregnable agnst. a bribe in western lands. Whatever the calumnious may circulate in other respects, yet here you have demonstration on yr. sides.


Title: To James Madison from Joseph Jones, 25 March 1796
From: Jones, Joseph
To: Madison, James

Dr. Sr.
Fredg. 25th. Mar: 1796.
The day after my return I wrote you a few lines to let you know I was at home I shall in a few days be obliged to set out on the eastern circuit and shall not return untill between the 20th. and last of may. I shall reach Williamsburg the 28th. of April if not a day or two before where I shall remain abt. twelve days I shall be glad to hear from you at that place any material occurrence that may happen between the 1t. next month and my arrival there. If you commence abt. the 15 or 18 of the month they will get there by or before my arrival and any you may write afterwards to the middle of may or near it will meet me there as I shall return from the Eastern shore through Wmsburg. and Richmond. I was at Col. Madisons on my late journey, they were well—he had got some clover seed from one Keyser none to be had here Richmond or Charlotte[s]ville. Mr. Jefferson was well and almost alone. Mr. Randolph and his Lady are in Richmond for the winter. I beg your attention to the affair of Pickering and also of Bache Monroe expected from the last person abt. 250 or 300 dols. on acct. advances to Paine—he is paying int. for the money untill by paymt. it is stoped. Mr. Livingstons motion (tho’ nothing more than usual and common and on the communication of the treaty to the house to be expected) has drawn into discussion a very important question wher. the treaty making power is paramount the Legislature for to that it goes ⟨and⟩ if that is our situation our representatives had better return home and take care of their farms for they can be of little or no use to their constituents in Congress. I always feared the consequences of general expressions & undefined powers in the Executi⟨ve⟩ And judiciary branches which might by construction be made the cloak to cover bad and dangerous designs knowing too that even the best men in Office are but too apt to hold fast all they are generally allowed to have but to grapple as much more as they can cleverly get into their clutches—the Governors or persons appointed to execute the government too generally think the gover[n]ment and people have separate interests and instead of making efforts to preserve the rights of the people are almost always aiming at encroachments and if the people oppose or complain of these attempts, the officers of government with insolence bawl out they want to break down or destroy the government to pull down the house they have taken the pains and trouble to erect they might as well say the people are all run mad and calling for knives to cut their own throa⟨ts.⟩ Let Governors stretch neither Laws or constitution and the people will honor and caress them. As far as I have seen the debates the Gent. who have supported the motion and opposed the unlimited power of the Executive in making Treaties have greatly the advantage of the argument and cannot I think fail to obtain a large majority—still I do not conclude as a necessary consequence that an equal majority will appear in opposition to carrying the treaty into effect altho’ much may be infered from the decision of Livingsto⟨n’s⟩ motion. I find the papers lately come very irregularly sometim⟨es⟩ one or two mails withot any. Adieu. Yr. friend & Servt
Jos: Jon⟨es⟩
I shall next post trouble you with Letters for Monroe & Joe.


Title: To James Madison from Thomas Jefferson, 27 March 1796
From: Jefferson, Thomas
To: Madison, James

Mar. 27. 96.
Yours of the 13th. is recieved. I am enchanted with mr. Gallatin’s speech in Bache’s paper of Mar. 14. It is worthy of being printed at the end of the Federalist, as the only rational commentary on the part of the constitution to which it relates. Not that there may not be objections, and difficult ones, to it, and which I shall be glad to see his answers to: but if they are never answered, they are more easily to be gulped down than those which lie to the doctrines of his opponents, which do in fact annihilate the whole of the powers given by the constitution to the legislature. According to the rule established by usage & common sense of construing one part of the instrument by another, the objects on which the P. & S. may exclusively act by treaty are much reduced, but the field on which they may act, with the sanction of the legislature, is large enough: and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty making power, except as to making peace. If you decide in favor of your right to refuse cooperation in any case of treaty, I should wonder on what occasion it is to be used, if not on one where the rights, the interest, the honor & faith of our nation are so grossly sacrificed, where a faction has entered into conspiracy with the enemies of their country to chain down the legislature at the feet of both; where the whole mass of your constituents have condemned this work in the most unequivocal manner, and are looking to you as their last hope to save them from the effects of the avarice & corruption of the first agent, the revolutionary machinations of others, and the incomprehensible acquiescensce of the only honest man who has assented to it. I wish that his honesty and his political errors may not furnish a second occasion to exclaim ‘curse on his virtues, they’ve undone his country.’ Cold weather. Mercury 26. in the morning. Corn fallen at Richmond to 20/—stationary here. Nicholas sure of his election. R. Jouett & Jo. Monroe in competition for the other vote of the county. Affections to mrs. M. & yourself. Adieu.


Title: Impressed American Seamen, [28 March] 1796
From: Madison, James
To:

[28 March 1796]

   After the debate on 1 March, Livingston (New York) reported to the House on 14 March a bill for the relief and protection of American seamen. It was read twice and committed. The third reading of the bill began on 28 March with the blanks being filled to authorize an appropriation of $15,000 to pay the agents and to set the price of sailors’ certificates at twenty-five cents (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 786, 802).

Mr. Madison wished every part of the present bill to be as free from objection as possible; nor could he discover any palpable deficiency in it. Its provisions, he believed, might be divided into three classes, viz. that which directs agents to be appointed; the next to seek redress, according to the Law of Nations, in behalf of American citizens; and also all other persons sailing under the American flag, conformably to the Law of Nations. If gentlemen recollect that the agents are only to take an account of all persons impressed, and make representations thereof from time to time to the President, it will be seen that they have nothing to do with expounding the Law of Nations in such cases. The Executive will have the opportunity, as he ought to have, of determining which are entitled to their protection and which are not entitled to it. With respect to neutral seamen, it appeared to him consistent with the Law of nations, and of great importance to the national interest, that they should be protected equally with their own citizens. It was before observed, that when war takes place in Europe, that the seamen of that country find their advantage in seeking employment in American vessels; therefore, if they meant to pursue their own interest, they would afford such men protection. And there was no ground to doubt that if a neutral seaman should be impressed from on board an American vessel, that an application for redress would be as likely to meet with success, as if he had been a native American. In the first place, no nation could have the pretence of a right to seize neutral seamen more than natives; in the next place they would be early distinguished from their own subjects, when Britain was the adverse party; and in the last place, an injury done to them, would not only be an injury done to the American nation, but also to the nation to which such seamen should belong. With respect to native Americans, and citizens before the year 1783, there can be no doubt of their being respected, provided they are furnished with proper certificates. It was true that it had never been avowed by Great Britain that she would impress American citizens from American vessels. Yet it was a fact that such had been impressed, when they have been without protections, as subjects of Great Britain. He understood that it had been insisted upon as an essential proof that the captain of a vessel shall make oath to the fact, which could not be done, in many cases. If, therefore, they could give to their seamen, any testimony which may secure them from violence, it was incumbent upon them to do so, and this bill did no more.

   Claypoole’s Am. Daily Advertiser, 7 Apr. 1796 (reprinted in Philadelphia Gazette, 7 Apr. 1796).

[28 March 1796]

   Continuing the debate, Coit (Connecticut) opposed the bill, declaring that it was unnecessary as the Constitution already gave the president the authority to appoint consuls and such agents as he thought necessary. He also argued that the standards of proof for the citizenship of American seamen were “too loose” (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 812).

Mr. Madison observed, that the gentleman from Connecticut seemed to think the present measure cast a reflection upon the executive. He could by no means think so. He said the executive had the power, by the constitution, of appointing ambassadors, other public ministers, and consuls; but the agents proposed to be appointed in this bill were neither ambassadors, public ministers, or consuls; they would have no rank as public characters, but be mere agents to do the business mentioned in the act; that they were not consuls was plain, because they were sent to do business which it was said the consuls had neglected to do. Again, he would remark, that although the President had the power to appoint ambassadors, other public ministers and consuls, the constitution required that the Senate should approve such appointments. But, with respect to agents, the case was different. The President appointed one agent to send to the West Indies, without that consent. He supposed, therefore, that that appointment was founded on some law relative to intercourse with foreign nations; he supposed, if the power was not so derived, it had been inaccurately exercised. If agents were to be employed, the offices, he said should be created by them, money appropriated, and left to be filled by the executive.

   Claypoole’s Am. Daily Advertiser, 7 Apr. 1796 (reprinted in Philadelphia Gazette, 8 Apr. 1796).

   After a motion to recommit the bill failed, it passed the House on 28 Mar. by 77 to 13, with JM voting in the majority. The Senate, on 20 Apr., tried to amend the bill but finally accepted the House version on 24 May. The president signed “An Act for the relief and protection of American seamen” on 28 May (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 820, 1095, 1114, 1294, 1423; JHRJournal of the House of Representatives of
          the United States (9 vols.; Washington, 1826)., 2:518, 519, 535, 536, 567, 574, 575, 579, 586; U.S. Statutes at LargeThe Public Statutes at Large of the United
          States of America … (17 vols.; Boston, 1848–73)., 1:477–78).


Title: From James Madison to Joseph Jones, 28 March 1796
From: Madison, James
To: Jones, Joseph

Letter not found. 28 March 1796. Acknowledged in Jones to JM, 26 Apr. 1796. Probably encloses accounts of House debate on Livingston’s motion calling for Jay’s papers.


Title: From James Madison to Joseph Jones, 30 March 1796
From: Madison, James
To: Jones, Joseph

Letter not found. 30 March 1796. Acknowledged in Jones to JM, 26 Apr. 1796. Informs Jones of Washington’s rejection of the House call for Jay’s papers.


Title: From James Madison to Thomas Jefferson, 4 April 1796
From: Madison, James
To: Jefferson, Thomas

Dear Sir
Philada. April 4. 1796
I have recd. yours of the 6th. Ult; also your letters for Monroe, Mazzei & Van Staphorsts; & shall have a good conveyance for them in two or three days. I am in some doubt however whether it may not be best to detain those for Mazzei & V. untill you can add the information I am now able to furnish you from Dohrman. He has at length closed the business of Mazzei in a just & honorable manner, by allowing the N. Y. damages on the bills of 20 PerCt. & the N Y. rate of interest, of 7 PerCt. This mode of settlement after deducting the partial payments for which he has receipts, leaves a balance of 3087 dollars, which has been just paid into my hands, and will be disposed of as you shall direct. You will of course lose no time in writing to me on the subject.
I have not yet heard from Bringhurst on the subject of Sharpless. He has no doubt written to you, according to his promise. I have seen Mr. Howell, who says there would be no difficulty in allowing you the credit you desire, if his son shd. take the place of Lownes.
I was not unaware of the considerations you suggest with regard to the post roads; but do not consider my proposition as involving any dangerous consequences. It is limited to the choice of roads where that is presented, & to the opening them, in other cases, so far only as may be necessary for the transportation of the mail. This I think fairly within the object of the Constn. It had, in fact, become essential that something shd. be done, & something would have been attempted, on a worse principle. If the route shall be once fixt for the post road, the local authorities will probably undertake the improvement &c of the roads; & individuals will go to work in providing the proper accomodations on them for general use.

The Newspapers will inform you that the call for the Treaty papers was carried by 62 agst. 37. You will find the answer of the President herewith inclosed. The absolute refusal was as unexpected, as the tone & tenor of the message, are improper & indelicate. If you do not at once perceive the drift of the appeal to the Genl. Convention & its journal, recollect one of Camillus’s last numbers, & read the latter part of Murray’s speech. There is little doubt in my mind that the message came from N. Y. where it was seen that an experiment was to be made at the hazard of the P. to save the faction agst. the Reps. of the people. The effect of this reprehensible measure on the majority is not likely to correspond with the calculation of its authors. I think there will be sufficient firmness to face it with resolutions declaring the Const:l. powers of the House as to Treaties, and that in applying for papers, they are not obliged to state their reasons to the Executive. In order to preserve this firmness however, it is necessary to avoid as much as possible an overt rencontre with the Executive. The day after the message was recd. the bill guarantying the loan for the federal City, was carried thro’ the H. of Reps. by a swimming majority.
I have letters from Monroe of the 12 & 20 Jany. The Truce with Austria was demanded by the latter, & was not likely to be renewed. A continuance of the war with England was counted on. The French Govt. was in regular & vigorous operation, & gaining daily more & more of the public confidence. A forced loan was going on for 25 Mil: sterlg, 12 Mil of wch. was receivable in Assignats at 100 for one; the balance in specie & produce. It is said that the British armament for the West Indies had suffered a third Coup de Vent, after leaving the channel, a third time.
According to my memory & that of others, the Journal of the Convention was by a vote deposited with the P. to be kept sacred untill called for by some competent authority. How can this be reconciled with the use he has made of it? Examine my notes if you please at the close of the business, & let me know what is said on the subject. You will perceive that the quotation is nothing to the purpose. Most of the majority wd. decide as the Convention did—because they think there may be some Treaties as a Mere Treaty of peace that would not require the Legislative power—a ratification by law also expresses a different idea from that entertained by the House of its Agency. Adieu.


Title: To James Madison from Robert Gamble, 4 April 1796
From: Gamble, Robert
To: Madison, James

Dear sir
Richmond April 4: 1796
I herewith enclose a letter for Mrs. Payne as the most certain mode of her getting it safe. I thank you for your kindness in putting under Cover, two Newspapers of the 23rd: ulto. which Came safe to hand. The qualified amendment you made to Livingstons resolution, I observe has passed the house by a large Majority. The resolution as it first was offered, was, extremely objectionable. The president, will no doubt, lay such information before Congress as will preclude the pretext of noncompliance for want of information. But the qualification of your amendment c⟨ou⟩ld, only make such a requisition Constitutional. Two thirds of the senate Concurring, was in that respect a constitutional representation of the sovereign States. I am sorry to discover Warmth in the debates. Yet I am sanguine in hoping that Zeal however well meant, will not prevent the essentials to carry the treaty into effect. Pardon the hasty observations. I am Dear sir your obt Hum st
Ro. Gamble


Title: Northwestern Land Offices, [5 April] 1796
From: Madison, James
To:

[5 April 1796]

   After JM had spoken on 3 March, a Committee of the Whole rejected Williams’s resolution and continued its debate the next day. An amended bill was sent to the House, which returned it to a select committee. The chairman, Smith (South Carolina), reported a new bill on 28 March, which provided for rectangular surveys six miles square, for the sale of one-half of the townships in lots three miles square and of the remaining half in lots of 640 acres, and for the use of military and land warrants in purchasing one-seventh part of any land. Discussion in a Committee of the Whole began on 5 April with Williams (New York) moving that this last clause be struck out. He was supported by Dayton (New Jersey) who preferred that separate tracts of land be set aside for purchases with military land warrants. The clause was struck out, but Crabb (Maryland) then moved an amendment that half of the 640-acre lots be sold in lots of 160 acres each (Annals of CongressDebates and Proceedings in the Congress of
          the United States … (42 vols.; Washington, 1834–56)., 4th Cong., 1st sess., 415–19, 419–23, 802, 857–64).

Mr. Madison was sorry to add any observations upon the subject, after what had fallen from the gentleman from New Jersey; but he thought the arguments which had been used in favour of the proposed amendment had great weight. If the lots of one mile square could be easily divided into four, which it appeared to him they might, he could see no reasonable objection to the measure; for, if it would accomodate any number of real occupiers, it was desirable that it should be done. The expence of exploring the country had been urged as an objection; but it occurred to him that a number of persons would go and explore the country without an intention of returning, and consequently the expence of their journey could be reckoned as nothing. Whether so large a portion of the country as gentlemen expected would be settled in this way, he should doubt; but still, he thought attention was due to them. And he found this to be the opinion of men who lived in that part of the country, and was conversant in the business of dividing and selling lands. He was not sure whether the amendment was worded in the best way possible.


Title: To James Madison from Joseph Habersham, 6 April 1796
From: Habersham, Joseph
To: Madison, James

Sir
General Post Office Philadela. April 6th. 1796.
I beg leave to offer a few observations to the Committee of which you are Chairman on the resolution of the House of Representatives for surveying and establishing a Main Post Road through the United States.
This route in my opinion should not be too particularly described for the following reasons.
The principal Towns in the respective States through which the Post must be conveyed may be easily ascertained, but in many instances where there are two or more routes between those Towns, accurate surveys must be made, and the best information obtained before it can be determined which route is to be prefered. Through some of the Southern States particularly it is at least doubtfull whether the present main post road might not be altered to great advantage.
The Main Post route as at present contemplated may commence at Wiscasset in Maine and terminate at Savannah in Georgia. If extended further in a Southern or Eastern direction the route will pass through a New Country intersected with Rivers or full of Bays & Harbours where the difficulty and expence of making roads will be immense. The following route is recommended to the Committee for the Main Post road. From Wiscasset in Maine through Boston, New York, Philadelphia, Baltimore, Richmond, Raleigh, Columbia and Louisville to Savannah in Georgia. The liberal establishment of Post roads through this widely extended continent appears to be at present commensurate to most purposes of public and private intercourse. Those roads now comprehend upwards of Fourteen thousand Miles, by which not only the Citizens of all the populous Towns but of large portions of new districts of Country are accomodated with the public Mails.
The next most important object is to secure an expeditious and regular conveyance of the Mails through the United states.
Failures on the cross Post roads are attended with little or no inconvenience, but when they happen on the Main line the consequences of them are extensively felt, to guard against them it will be necessary to erect bridges in many places and to improve the state of the roads in general. The surplusage revenue of the Post Office if appropriated for this purpose and aided by private subscriptions will in all probability compleat a Turnpike Road of very considerable extent in the course of a few years. If countenanced by the Government individuals will no doubt be induced to lend their aid with spirit in different parts of the Union to accomplish an object of such great national importance. I have the honour to be &c.
J. H.