Title: The Federalist Number 43, [23 January] 1788
From: Madison, James
To:

[23 January 1788]
The fourth class comprises the following miscellaneous powers:
1. A power to “promote the progress of science and useful arts, by securing for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”
The utility of this power will scarcely be questioned. The copy right of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases, with the claims of individuals. The states cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress.
2. “To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular states, and the acceptance of congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislature of the states, in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.”
The indispensable necessity of compleat authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general government on the state, comprehending the seat of the government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government, and dissatisfactory to the other members of the confederacy. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government, would be both too great a public pledge to be left in the hands of a single state; and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the state ceding it; as the state will no doubt provide in the compact for the rights, and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the state, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the state, in their adoption of the constitution, every imaginable objection seems to be obviated.
The necessity of a like authority over forts, magazines, &c. established by the general government is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular state. Nor would it be proper for the places on which the security of the entire union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the states concerned, in every such establishment.
3. “To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it; but as new fangled and artificial treasons, have been the great engines, by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the convention have with great judgment opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.
4. “To admit new states into the union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.”
In the articles of confederation no provision is found on this important subject. Canada was to be admitted of right on her joining in the measures of the United States; and the other colonies, by which were evidently meant, the other British colonies, at the discretion of nine states. The eventual establishment of new states, seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which congress have been led by it. With great propriety therefore has the new system supplied the defect. The general precaution that no new states shall be formed without the concurrence of the federal authority and that of the states concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new states, by the partition of a state without its consent, quiets the jealousy of the larger states; as that of the smaller is quieted by a like precaution against a junction of states without their consent.
5. “To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso that nothing in the constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”
This is a power of very great importance, and required by considerations similar to those which shew the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary, by jealousies and questions concerning the western territory, sufficiently known to the public.
6. “To guarantee to every state in the union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”
In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the constitution? Governments of dissimilar principles and forms, have been found less adapted to a federal coalition of any sort, than those of a kindred nature. “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shews us that it is more imperfect than that of Holland and Switzerland.” “Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphyctions.” In the latter case, no doubt, the disproportionate force, as well as the monarchical form of the new confederate, had its share of influence on the events. It may possibly be asked what need there could be of such a precaution, and whether it may not become a pretext for alterations in the state governments, without the concurrence of the states themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the constitution. But who can say what experiments may be produced by the caprice of particular states, by the ambition of enterprizing leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority. But the authority extends no farther than to a guaranty of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed. As long therefore as the existing republican forms are continued by the states, they are guaranteed by the federal constitution. Whenever the states may chuse to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions; a restriction which it is presumed will hardly be considered as a grievance.
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used, seems to secure each state not only against foreign hostility, but against ambitious or vindictive enterprizes of its more powerful neighbours. The history both of antient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article.
Protection against domestic violence is added with equal propriety. It has been remarked that even among the Swiss cantons, which properly speaking are not under one government, provision is made for this object; and the history of that league informs us, that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well known event among ourselves, has warned us to be prepared for emergencies of a like nature.
At first view it might seem not to square with the republican theory, to suppose either that a majority have not the right, or that a minority will have the force to subvert a government; and consequently that the federal interposition can never be required but when it would be improper. But theoretic reasoning in this, as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations for purposes of violence be formed as well by a majority of a state, especially a small state, as by a majority of a county or a district of the same state; and if the authority of the state ought in the latter case to protect the local magistracy, ought not the federal authority in the former to support the state authority? Besides, there are certain parts of the state constitutions which are so interwoven with the federal constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a state will rarely induce a federal interposition, unless the number concerned in them, bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose will generally prevent the necessity of exerting it.
Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succours from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen in fine that the minority of citizens may become a majority of persons, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the state has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the states, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.

In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms and tearing a state to pieces, than the representatives of confederate states not heated by the local flame? To the impartiality of judges they would unite the affection of friends. Happy would it be if such a remedy for its infirmities, could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind.
Should it be asked what is to be the redress for an insurrection pervading all the states, and comprizing a superiority of the entire force, though not a constitutional right; the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that it is a sufficient recommendation of the federal constitution, that it diminishes the risk of a calamity, for which no possible constitution can provide a cure.
Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, “that should a popular insurrection happen in one of the states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.”
7. “To consider all debts contracted and engagements entered into, before the adoption of this constitution, as being no less valid against the United States under this constitution, than under the confederation.”
This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine that a change in the political form of civil society, has the magical effect of dissolving its moral obligations.
Among the lesser criticisms which have been exercised on the constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterises little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would dare, with or even without this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned.
8. “To provide for amendments to be ratified by three-fourths of the states, under two exceptions only.”

That useful alterations will be suggested by experience, could not but be foreseen. It was requisite therefore that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. It moreover equally enables the general and the state governments to originate the amendment of errors as they may be pointed out by the experience on one side or on the other. The exception in favor of the equality of suffrage in the senate was probably meant as a palladium to the residuary sovereignty of the states, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the states particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.
9. “The ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states ratifying the same.”
This article speaks for itself. The express authority of the people alone could give due validity to the constitution. To have required the unanimous ratification of the thirteen states, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcuseable.
Two questions of a very delicate nature present themselves on this occasion. 1. On what principle the confederation, which stands in the solemn form of a compact among the states, can be superceded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more states ratifying the constitution, and the remaining few who do not become parties to it.
The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society, are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps also an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the confederation, that in many of the states, it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require, that its obligation on the other states should be reduced to the same standard. A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others; and authorises them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular states to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed and with it, the part which the same motives dictate.
The second question is not less delicate; and the flattering prospect of its being merely hypothetical, forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general it may be observed, that although no political relation can subsist between the assenting and dissenting states, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to re-union, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.
Publius.


Title: To James Madison from Eliza House Trist, 23 January 1788
From: Trist, Eliza House
To: Madison, James

23 January 1788. Acknowledged in JM to Mrs. Trist, 27 Jan. 1788. Comments favorably on Luther Martin’s Genuine Information.


Title: From James Madison to George Washington, 25 January 1788
From: Madison, James
To: Washington, George

Dear Sir
N. York Jany 25. 1788.
I have been favoured since my last with yours of the 10th. inst: with a copy of the Governours letter to the Assembly. I do not know what impression the latter may make in Virginia. It is generally understood here that the arguments contained in it in favor of the Constitution are much stronger than the objections which prevented his assent. His arguments are forceable in all places, and with all persons. His objections are connected with his particular way of thinking on the subject, in which many of the Adversaries to the Constitution do not concur.
The information from Boston by the mail on the evening before last, has not removed our suspence. The following is an extract of a letter from Mr. King dated on the 16th. inst.
“We may have 360 members in our Convention. Not more than 330 have yet taken their seats. Immediately after the settlement of Elections, the Convention resolved that they would consider and freely deliberate on each paragraph without taking a question on any of them individually, & that on the question whether they would ratify, each member should be at liberty to discuss the plan at large. This Resolution seems to preclude the idea of amendments; and hitherto the measure has not been suggested. I however do not from this circumstance conclude that it may not hereafter occur. The opponents of the Constitution moved that Mr. Gerry should be requested to take a seat in the Convention to answer such enquiries as the Convention should make concerning facts which happened in the passing of the Constitution. Although this seems to be a very irregular proposal, yet considering the jealousies which prevail with those who made it (who are certainly not the most enlightened part of the Convention) and the doubt of the issue had it been made a trial of strength, several friends of the Constitution united with the opponents and the Resolution was agreed to and Mr. Gerry has taken his seat. Tomorrow we are told certain enquiries are to be moved for by the opposition, and that Mr. Gerry under the idea of stating facts is to state his reasons &c.—this will be opposed and we shall on the division be able to form some idea of our relative strength. From the men who are in favour of the Constitution every reasonable explanation will be given, and arguments really new and in my judgment most excellent have been and will be produced in its support. But what will be its fate, I confess I am unable to discern. No question ever classed the people of this State in a more extraordinary manner, or with more apparent firmness.”

A Congress of seven States was made up on Monday. Mr. C. Griffin has been placed in the chair. This is the only step yet taken. I remain with the highest respect & attachmt Yrs affety.
Js Madison Jr


Title: The Federalist Number 44, [25 January] 1788
From: Madison, James
To:

[25 January 1788]
A Fifth class of provisions in favor of the federal authority, consists of the following restrictions on the authority of the several states.
1. “No state shall enter into any treaty, alliance or confederation, grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver a legal tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”
The prohibition against treaties, alliances and confederations, makes a part of the existing articles of union; and for reasons which need no explanation, is copied into the new constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the states, after a declaration of war. According to the latter, these licences must be obtained as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those, for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the states, was left in their hands by the confederation as a concurrent right with that of congress, under an exception in favor of the exclusive right of congress to regulate the alloy and value. In this instance also the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular states could have no other effect than to multiply expensive mints, and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head. And as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attained by local mints established under the general authority.
The extension of the prohibition to bills of credit must give pleasure to every citizen in proportion to his love of justice, and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money, on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed that the same reasons which shew the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every state a right to regulate the value of its coin, there might be as many different currencies as states; and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other states be injured, and animosities be kindled among the states themselves. The subjects of foreign powers might suffer from the same cause, and hence the union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the states, on the same principle with that of striking of paper currency.
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us nevertheless, that additional fences against these dangers ought not to be omitted. Very properly therefore have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not in so doing as faithfully consulted the genuine sentiments, as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation, that sudden changes and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprizing and influential speculators; and snares to the more industrious and less informed part of the community. They have seen too, that one legislative interference is but the first link of a long chain of repetitions; every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility, is copied from the articles of confederation and needs no comment.
2. “No state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the neat produce of all duties and imposts laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and controul of the congress. No state shall, without the consent of congress, lay any duty on tonnage, keep troops or ships of war in time of peace; enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”
The restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless therefore to remark further on this head, than that the manner in which the restraint is qualified, seems well calculated at once to secure to the states a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause, fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.
The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest.
1. “Of these the first is the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States.”
Few parts of the constitution have been assailed with more intemperance than this; yet on a fair investigation of it, as has been elsewhere shewn, no part can appear more completely invulnerable. Without the substance of this power, the whole constitution would be a dead letter. Those who object to the article therefore as a part of the constitution, can only mean that the form of the provision is improper. But have they considered whether a better form could have been substituted?
There are four other possible methods which the convention might have taken on this subject. They might have copied the second article of the existing confederation which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition: They might have been altogether silent on the subject; leaving these necessary and proper powers, to construction and inference.
Had the convention taken the first method of adopting the second article of confederation; it is evident that the new congress would be continually exposed as their predecessors have been, to the alternative of construing the term “expressly” with so much rigour as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to shew if it were necessary, that no important power, delegated by the articles of confederation, has been or can be executed by congress, without recurring more or less to the doctrine of construction or implication. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interest by doing nothing; or of violating the constitution by exercising powers indispensably necessary and proper; but at the same time, not expressly granted.
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect; the attempt would have involved a compleat digest of laws on every subject to which the constitution relates; accommodated too not only to the existing state of things, but to all the possible changes which futurity may produce: For in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means, not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection; that every defect in the enumeration, would have been equivalent to a positive grant of authority. If to avoid this consequence they had attempted a partial enumeration of the exceptions and described the residue by the general terms, not necessary or proper: It must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated because the enumeration would of course select such as would be least necessary or proper, and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made.
Had the constitution been silent on this head, there can be no doubt that all the particular powers, requisite as means of executing the general powers, would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included. Had this last method therefore been pursued by the convention, every objection now urged against their plan, would remain in all its plausibility; and the real inconveniency would be incurred, of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the union.
If it be asked, what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning? I answer the same as if they should misconstrue or enlarge any other power vested in them, as if the general power had been reduced to particulars, and any one of these were to be violated; the same in short, as if the state legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who can by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures, for this plain reason, that as every such act of the former, will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the state legislatures and the people, interested in watching the conduct of the former, violations of the state constitution are more likely to remain unnoticed and unredressed.
2. “This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United 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 indiscreet zeal of the adversaries to the constitution, has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this we need only suppose for a moment, that the supremacy of the state constitutions had been left compleat by a saving clause in their favor.
In the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former, would in such states have brought into question, every power contained in the proposed constitution.
In the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law of great and equal importance to the states, would interfere with some and not with other constitutions, and would consequently be valid in some of the states at the same time that it would have no effect in others.
In fine, the world would have seen for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster in which the head was under the direction of the members.
3. “The senators and representatives, and the members of the several state legislatures; and all executive and judicial officers, both of the United States, and the several states shall be bound by oath or affirmation, to support this constitution.”
It has been asked, why it was thought necessary, that the state magistracy should be bound to support the federal constitution, and unnecessary that a like oath should be imposed on the officers of the United States in favour of the state constitutions?
Several reasons might be assigned for the distinctions. I content myself with one which is obvious and conclusive. The members of the federal government will have no agency in carrying the state constitutions into effect. The members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal constitution. The election of the president and senate, will depend in all cases, on the legislatures of the several states. And the election of the house of representatives, will equally depend on the same authority in the first instance; and will probably, for ever be conducted by the officers and according to the laws of the states.
4. Among the provisions for giving efficacy to the federal powers, might be added, those which belong to the executive and judiciary departments: But as these are reserved for particular examination in another place, I pass them over in this.
We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the proposed constitution to the federal government; and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the union. The question therefore, whether this amount of power shall be granted or not, resolves itself into another question, whether or not a government commensurate to the exigencies of the union, shall be established; or in other words, whether the union itself shall be preserved.
Publius.


Title: To James Madison from André Limozin, 26 January 1788
From: Limozin, André
To: Madison, James

Most Honored Sir
Havre de Grace 26st January 1788.
Mr Thoms Jefferson Ambassadr of the US at the Court of Versailles forwarded me the Letter your Excellency was so Kind as to honor me with the 8th Ulto, inclosing me Captain Fournier’s Bill of Lading for

2
Barrlls apples.
}
which were deliverd. in the most

2
dto cranberries
pityfull Condition, the fruit being

intirely rotten

1
Box containing Fruit trees which I have forwarded to Mr Jefferson in a good order.

The Kind Contents of your Excellencys Letter for which I shall be at all times Sincerely gratefull intitle me to take the Freedom to inclose you Copy of a Letter I address by the same conveyance as this to his Excy: Dr B Franklin containing my petition to Congress for a certain recompense or indemnity for my disbursements pains troubles & expences I have been at & which are related in my said Letter. I am in good hopes that Dr Franklin will not forget the promises he made me in my house to mentionn to Congress every particulars on that matter; therefore I dont doubt but he will Not refuse to lay my petition under the Consideration of Congress.
Give me leave to beg of your Excellency to render me the Service to favor me with your warm protection in that Circumstance, I am sensible that if all the Americans who have been here, could be Consulted every one would give their voice in the behalf of my petitions & that they would beg in my favor the most authentick instances of acknowledgement & gratitude however I submitt every thing to your Excellency’s Consideration, & Since your Excellency is so Kind as to return me so many thanks for the trifling troubles I have been at in complying the orders of my most worthy & Honored friend Mr Thomas Jefferson for whatever they might concern your Excellency, I can’t form the least doubt but my behavior in this Circumstance will likewise meet with your Excellency’s approbation. I have the honor to be with the highest regard Your Excellency’s Most obedient & very humble Servant,
Andre Limozin


Title: The Federalist Number 45, [26 January] 1788
From: Madison, James
To:

[26 January 1788]
Having shewn that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several states.
The adversaries to the plan of the convention instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary enquiry into the possible consequences of the proposed degree of power, to the governments of the particular states. But if the union, as has been shewn, be essential, to the security of the people of America against foreign danger; if it be essential to their security against contentions and wars among the different states; if it be essential to guard them against those violent and oppressive factions which imbitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word the union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government without which the objects of the union cannot be attained, that such a government may derogate from the importance of the governments of the individual states? Was then the American revolution effected, was the American confederacy formed, was the precious blood of thousands spilt, and the hard earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety; but that the governments of the individual states, that particular municipal establishments might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape, that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people is the supreme object to be pursued; and that no form of government whatever, has any other value, than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, reject the plan. Were the union itself inconsistent with the public happiness, it would be, abolish the union. In like manner as far as the sovereignty of the states cannot be reconciled to the happiness of the people; the voice of every good citizen must be, let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shewn. How far the unsacrificed residue will be endangered, is the question before us.
Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the state governments. The more I revolve the subject the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.
We have seen in all the examples of antient and modern confederacies, the strongest tendency continually betraying itself in the members to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although in most of these examples, the system has been so dissimilar from that under consideration, as greatly to weaken any inference concerning the latter from the fate of the former; yet as the states will retain under the proposed constitution a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achæan league, it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated or tended to degenerate into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissentions, and finally the disunion of the subordinate authorities. These cases are the more worthy of our attention, as the external causes by which the component parts were pressed together, were much more numerous and powerful than in our case; and consequently, less powerful ligaments within, would be sufficient to bind the members to the head, and to each other.
In the feudal system we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter; it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination; and particularly had the local sovereigns possessed the affections of the people, the great kingdoms in Europe, would at this time consist of as many independent princes as there were formerly feudatory barons.
The state governments will have the advantage of the federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.
The state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is no wise essential to the operation or organisation of the former. Without the intervention of the state legislatures, the president of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it. The senate will be elected absolutely and exclusively by the state legislatures. Even the house of representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the state legislatures. Thus each of the principal branches of the federal government will owe its existence more or less to the favor of the state governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious, than too overbearing towards them. On the other side, the component parts of the state governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little if at all, to the local influence of its members.
The number of individuals employed under the constitution of the United States, will be much smaller, than the number employed under the particular states. There will consequently be less of personal influence on the side of the former, than of the latter. The members of the legislative, executive and judiciary departments of thirteen and more states; the justices of peace, officers of militia, ministerial officers of justice, with all the county corporation and town officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments, of the Thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the union; compare the militia officers of three millions of people, with the military and marine officers of any establishment which is within the compass of probability, or I may add, of possibility, and in this view alone, we may pronounce the advantage of the states to be decisive. If the federal government is to have collectors of revenue, the state governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very numerous; whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true that the confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the states: But it is probable that this power will not be resorted to, except for supplemental purposes of revenue; that an option will then be given to the states to supply their quotas by previous collections of their own; and that the eventual collection under the immediate authority of the union, will generally be made by the officers, and according to the rules, appointed by the several states. Indeed it is extremely probable that in other instances, particularly in the organization of the judicial power, the officers of the states will be cloathed with the correspondent authority of the union. Should it happen however that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not be a comparison with that of the multitude of state-officers in the opposite scale. Within every district, to which a federal collector would be allotted, there would not be less than thirty or forty or even more officers of different descriptions and many of them persons of character and weight, whose influence would lie on the side of the state.
The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.
The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the state governments will here enjoy another advantage over the federal government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendancy over the governments of the particular states.
If the new constitution be examined with accuracy and candour, it will be found that the change which it proposes, consists much less in the addition of new powers to the union, than in the invigoration of its original powers. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing congress by the articles of confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation, may be regarded as the most important: and yet the present congress have as compleat authority to require of the states indefinite supplies of money for the common defence and general welfare, as the future congress will have to require them of individual citizens; and the latter will be no more bound than the states themselves have been, to pay the quotas respectively taxed on them. Had the states complied punctually with the articles of confederation, or could their compliance have been enforced by as peaceable means as may be used with success towards single persons, our past experience is very far from countenancing an opinion that the state governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the state governments is incompatible with any system whatever that accomplishes the essential purposes of the union.
Publius.


Title: From James Madison to Edmund Randolph, 27 January 1788
From: Madison, James
To: Randolph, Edmund

My dear friend
N. York. Jany. 27. 1788.
A Congress was made for the first time on monday last and our friend C. Griffin placed in the chair. There was no competition in the case which you will wonder at as Virginia has so lately supplied a president. N. Jersey did not like it I believe very well, but acquiesed.
I postponed writing by the last mail, in hopes of being able by this to acquaint you with the probable result of the Convention of Massts. It appears however that the prospect continues too equivocal to justify a conjecture on the subject. The representations vary somewhat but they all tend to excite rather than diminish anxiety. Mr. Gerry had been introduced to a seat for the purpose of stating facts. On the arrival of the discussion at the article concerning the Senate, he signified without being called on, that He had important information to communicate on that subject. Mr. Dana & several others remarked on the impropriety of Mr. G——y’s Conduct. G—— rose to justify. Others opposed it as irregular. A warm conversation arose & continued till the adjournment; after which a still warmer one took place between Gerry & Dana. The members gathered around them, took sides as they were for or against the Constitution, and strong symtoms of Confusion appeared. At length however they separated. It was expected that the subject would be renewed in the Convention the next morning. This was the State of things when the post came off.
In one of the papers enclosed you will find your letter to the Assembly reviewed by some critic of this place. I can form no guess who he is. I have seen another attack grounded on a comparative view of your Objections Col. Mason’s & Mr. Gerry’s. This was from Philadelphia. I have not the paper or I would add it. With the sincerest affection & attachment I remain my dear Sir Yrs.
Js. Madison Jr


Title: To James Madison from Tench Coxe, 27 January 1788
From: Coxe, Tench
To: Madison, James

Dear Sir
Philada. Jany. 27th. 1788
From your letter with respect to the Convention at B. I have been anxious to procure the Remr. of Mr. Lloyd’s debates to send to Mr. King. There were some pages more struck off, which I have obtained and cover them to you with a letter to be forwarded as before. I beg your pardon for the trouble I give & the freedom I have used.
I find our Opposition were possessed of the temper of the Western & Eastern Members of the Massachussets Convention very minutely when I recd. your letter. That evening a person much Opposed to the Constitution said Massachussets would reject it. I fancy Mr. G. & Mr. S. A. keep up a minute & regular correspondence.
There will be a good many unfavorable petitions, it is said, from our Western Counties; but the Assembly will certainly dismiss them by a Majority of two thirds. I apprehend a warm, unpleasant Session. They meet in about three Weeks. I am, dear Sir, with great truth your most respectf. h. Servt.
Tench Coxe


Title: To James Madison from Rufus King, 27 January 1788
From: King, Rufus
To: Madison, James

Dr. Sir,
Boston 27 Jan. 88
I hope your information will be confirmed; that the Tide is again turning in favor of the Constitution in Virginia. We make but slow progress in our Convention, the Friends of the Constitution who in addition to their own weight, are respectable as they represent a very large proportion of the Good Sense and Property of this State, have the Task not only of answering, but also of stating and bringing forward, the Objections of their Opponents. The Opposition complain that the Lawyers, Judges, Clergymen, Merchants and men of Education are all in Favor of the constitution; & that for this reason they appear to be able to make the worst, appear the better cause. But say they if we had men of this Description on our Side we should alarm the People with the Imperfections of the Constitution, & be able to refute the Defence set up in its favor. Notwithstanding the superiority of Talents in favor of the constitution, yet the same infatuation, which prevailed not many months since in several Counties of this State, and which emboldened them to take arms agt. the Government seems to have an uncontroulable authority over a numerous part of our Convention. Their Objections are not directed against any part of the constitution, but their Opposition seems to arise from an Opinion, that is immoveable, that some injury is plotted against them, that the System is the production of the Rich, and ambitious; that they discern its operation, and that the consequence will be, the establishment of two Orders in the Society, one comprehending the Opulent & Great, the other the poor and illiterate.
The extraordinary union in favor of the Constitution in this State, of the wealthy and sensible part of it, is a confirmation of their Opinion; and every Exertion hitherto made to eradicate it has been in vain.
We have avoided every Question which would have shewn the division of the House, of consequence we are not positive of the numbers on each side, by the last calculation we made on our side, we were doubtful whether we exceeded them or they us in Numbers. They however say that they have a majority of Eight or Twelve agt. us. We by no means dispair.


Title: From James Madison to George Washington, 28 January 1788
From: Madison, James
To: Washington, George

Dear Sir
New York Jany. 28. 1788
The information which I have by the Eastern mail rather increases than removes the anxiety produced by the last. I give it to you as I have recd. it in the words of Mr. King.

Boston 20. Jany. 88
“Our Convention proceeds slowly. An apprehension that the liberties of the people are in danger, and a distrust of men of property or education have a more powerful effect upon the minds of our opponents than any specific objections against the Constitution. If the opposition was grounded on any precise points, I am persuaded that it might be weakened, if not entirely overcome. But every attempt to remove their fixed and violent jealousy seems hitherto to operate as a confirmation of that baneful passion. The opponents affirm to each other that they have an unalterable majority on their side. The friends doubt the strength of their adversaries but are not entirely confident of their own. An event has taken place relative to Mr. Gerry, which without great caution may throw us into confusion. I informed you by the last post on what terms Mr. Gerry took a Seat in the Convention. Yesterday in the course of debate on the Construction of the Senate, Mr. G. unasked, informed the Convention that he had some information to give the Convention on the subject then under discussion. Mr. Dana and a number of the most respectable members, remarked upon the impropriety of Mr. G——s conduct. Mr. G. rose with a view to justify himself. He was immediately prevented by a number of objectors. This brought on an irregular conversation whether Mr. G. should be heard. The Hour of adjournment arrived and the President adjourned the House. Mr. Gerry immediately charged Mr. Dana with a design of injuring his reputation by partial information, and preventing his having an opportunity to communicate important truths to the Convention. This charge drew a warm reply from Mr. Dana. The members collected about them, took sides as they were for or against the Constitution, and we were in danger of the utmost confusion. However the gentlemen separated, and I suppose tomorrow morning will renew the discussion before the Convention. I shall be better able to conjecture the final issue by next post.”

There are other letters of the same date from other gentlemen on the spot which exhibit rather a more favorable prospect. Some of them I am told are even flattering. Accounts will always vary in such cases, because they must be founded on different opportunities of remarking the general complexion; where they take no tincture from the opinions or temper of the writer. I remain Dear Sir with the Most perfect esteem & attachment Your Obedt. servt.
Js. Madison Jr.


Title: From James Madison to Tench Coxe, 30 January 1788
From: Madison, James
To: Coxe, Tench

Dear Sir
N. York Jany. 30. [1788]
I have been favored with two letters from you, one containing 2 copies of the freeman, the other a pamphlet & letter for Mr. King. The latter will be forwarded this evening, as will also the former which did not arrive in time for the preceding mail. What goes by name of consolidation in Pena. is I suspect at the bottom of the opposition to the New Govt. almost every where; and I am glad to find you engaged in developing the subject. I inclose some papers in which it has been taken up here, that if any hints are contained in them, they may be pursued in your enquiry.
There is certainly a favorable change taking place in Virga. on the subject of the Constitution. Several converts of influence have been named to me. I had heard also that Col. R. H. Lee was relaxing in his opposition, if not in his opinions. The authority from which I have it is such as almost to overcome the improbability of the thing.
Our anxiety for the event in Masts. was not relieved by the last mail. No decisive index had appeared of the relative force of parties. Some letters are flattering, others discouraging, and others again totally skeptical. My hopes & apprehensions are pretty nearly balanced by the sum of the probabilities on each side, tho’ with rather a prepondenancy on the favorable side. With great esteem I am Dr Sir Yr. Obed hble servt.
Js. Madison Jr.


Title: To James Madison from Rufus King, 30 January 1788
From: King, Rufus
To: Madison, James

Dear Sir,
Boston 30. Jan 1788. Wednesday
This day for the first our President Mr. Hancock took his Seat in convention, and we shall probably terminate our business on Saturday or Tuesday next. I cannot predict the issue, but our Hopes are increasing—if Mr. Hancock does not disappoint our present Expectations our wishes will be gratified. But his character is not entirely free from a portion of caprice—this however is confidential. Farewel. Your’s &c
Rufus King


Title: To James Madison from James Madison, Sr., 30 January 1788
From: Madison, James, Sr.
To: Madison, James

Jany. 30. 1788.
[…]
I have defered writing to you till I saw our Delegates after their return from the Assembly, that I might more fully inform you of their sentiments of the proposed constitution. I have only seen Majr. Burnley at Court on Monday last, but did not hear him say any thing about it; He disapproves of it, but says very little about it, probably, as he does not intend to offer his service for the convention, he may hurt his interest in the election for Delegates to the Assembly, for which he intends to offer, if he opposes the adoption of the new Constitution too warmly. Col. Barbour I have not seen, he was not at Court; probably was preparing for his Mothers funeral, who was to be intered the day after. He is much opposed to it, and is a candidate for the Convention. I believe there were but few that disapproved of it at first, in this County: but several being at Richmond with their Tobo. at the time the Assembly was sitting, & hearing the many objections made to it, altered their opinions, & have influ[en]ced some others who are no better acquainted with the necessity of adopting it than they themselves: And the pieces published against it, have had their intended effect with some others.
The Baptists are now generally opposed to it, as it is said; Col. Barbour has been down on Pamunky amongst them, & on his return, I hear, publickly declared himself a candidate, I suppose, on the encouragement he met with from the Antifederalists. I do not know at present any other Candidates but yourself & Mr. Gordon, who is a warm friend to the Constitution, & I believe no others that are for it will offer. I think you had better come in as early in March as you can: many of your friends wish it; there are some who suspends their opinion till they see you, & wish for an explanation, others wish you not to come, & will endeavor to shut you out of the Convention, the better to carry their point. Mr. R H. L.s Letter to the G——r. is much approved of by some, & as much ridiculed by others: and so is the reasoning & representation of the minority of the Pennsylvania Convention.
The inclosed was brot. from Kentuckey by Mr. Thos. Jones; I guess it is from Mr. Wallace.
The specimen you sent me from Mr. House of his method of reducing the gross Hundred, I have been acquainted with long since; before either you or he had existence; but the Acct. of Sales he sent did not agree with the rule, which I suppose was from some mistake in the calculations; I believe I gave you his Acct. to have it corrected; He also omitted to enter one of the Hhds. I should be glad of a seperate Acct. of my 30. Hhds Tobo. & of Frankey’s 2 markt FM. if he can render it: And of some money for it, if you have not made use of it all, for the prospect of my getting any for the Bonds you left with me is not very promising at present.
I shall be glad to receive a letter from you as soon as you receive this, & to know when we may expect you & how you expect to get from Fredg home, if you come there in the Stage. Corn is very scarce among us, & of course very dear; and the hard weather we have had for 5 or 6 weeks past, I am apprehensive will make it very difficult for many persons to shift till the summer grain is ripe.
Our family are as well as usual; Your bror. Am.s Wife is very unwell, & has been for a month at least past. Dr Gilmer left her Yesterday to go to Mrs. McDonald at Mr. Isaac Hite’s her Fathers; he had stayed with your sister, 5 or 6 days constantly; She is better, but not recovered. Your Sister Nelly was well a few days ago; as our family & friends are as usual. I am Your Afft. Father
James Madison
P.S. When Majr. James Coleman was here in Orange two Years ago, I gave him Continental Loan Office Certificates for 1500 Dollars, granted in N. Carolina to Col. George Baylor, & dated the 17 of May 1778, to get liquidated; he is now here & has brought them back, & says, that upon application for a settlement, he is referred to Congress, where there is a person appointed to settle them: I wish you to enquire into it, and inform me what step will be proper for me to take: I purpose to send them by you if they are to be settled at the Northward.


Title: The Federalist Number 47, [30 January] 1788
From: Madison, James
To:

[30 January 1788]
Having reviewed the general form of the proposed government, and the general mass of power allotted to it; I proceed to examine the particular structure of this government, and the distribution of this mass of power among its constituent parts.
One of the principal objections inculcated by the more respectable adversaries to the constitution, is its supposed violation of the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct. In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore, really chargeable with this accumulation of power or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies, has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense, in which the preservation of liberty requires, that the three great departments of power should be separate and distinct.
The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavour in the first place to ascertain his meaning on this point.
The British constitution was to Montesquieu, what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard, as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged; so this great political critic appears to have viewed the constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure then not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.
On the slightest view of the British constitution we must perceive, that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him; can be removed by him on the address of the two houses of parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also, a great constitutional council to the executive chief; as on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction, in all other cases. The judges again are so far connected with the legislative department, as often to attend and participate in its deliberations, though not admitted to a legislative vote.
From these facts by which Montesquieu was guided it may clearly be inferred, that in saying, “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. This would not have been the case in the constitution examined by him, if the king who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body, had possessed the supreme judiciary, or the supreme executive authority. This however is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law, nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock, nor any legislative function, though they may be advised with by the legislative councils. The entire legislature, can perform no judiciary act; though by the joint act of two of its branches, the judges may be removed from their offices; and though one of its branches is possessed of the judicial power in the last resort. The entire legislature again can exercise no executive prerogative, though one of its branches
   The King.
 constitutes the supreme executive magistracy; and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Again “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several states, we find that notwithstanding the emphatical, and in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New-Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments; and has qualified the doctrine by declaring “that the legislative, executive and judiciary powers ought to be kept as separate from, and independent of each other as the nature of a free government will admit; or as is consistent with that chain of connection, that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.” Her constitution accordingly mixes these departments in several respects. The senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The president who is the head of the executive department, is the presiding member also of the senate; and besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department; and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department.
The constitution of Massachusetts has observed a sufficient though less pointed caution in expressing this fundamental article of liberty. It declares, “that the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department. In the very constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body; and the senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department again are appointable by the executive department, and removeable by the same authority, on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the constitution have in this last point at least, violated the rule established by themselves.
I pass over the constitutions of Rhode-Island and Connecticut, because they were formed prior to the revolution; and even before the principle under examination had become an object of political attention.
The constitution of New-York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives nevertheless to the executive magistrate a partial controul over the legislative department; and what is more, gives a like controul to the judiciary department, and even blends the executive and judiciary departments in the exercise of this controul. In its council of appointment, members of the legislative are associated with the executive authority in the appointment of officers both executive and judiciary. And its court for the trial of impeachments and correction of errors, is to consist of one branch of the legislature and the principal members of the judiciary department.
The constitution of New-Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary or surrogate of the state; is a member of the supreme court of appeals, and president with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the court of appeals. The members of the judiciary department are appointed by the legislative department, and removeable by one branch of it, on the impeachment of the other.
According to the constitution of Pennsylvania, the president, who is head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachments for trial of all officers, judiciary as well as executive. The judges of the supreme court, and justices of the peace, seem also to be removeable by the legislature; and the executive power of pardoning in certain cases to be referred to the same department. The members of the executive council are made ex officio justices of peace throughout the state.
In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed three by each of the legislative branches, constitute the supreme court of appeals: He is joined with the legislative department in the appointment of the other judges. Throughout the states it appears that the members of the legislature may at the same time be justices of the peace. In this state, the members of one branch of it are ex officio justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other. Her constitution, notwithstanding makes the executive magistrate appointable by the legislative department; and the members of the judiciary, by the executive department.
The language of Virginia is still more pointed on this subject. Her constitution declares, “that the legislative, executive and judiciary departments, shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time; except that the justices of county courts shall be eligible to either house of assembly.” Yet we find not only this express exception, with respect to the members of the inferior courts; but that the chief magistrate with his executive council are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal officers, both executive and judiciary, are filled by the same department. The executive prerogative of pardoning, also is in one case vested in the legislative department.
The constitution of North-Carolina, which declares, “that the legislative, executive and supreme judicial powers of government, ought to be forever separate and distinct from each other,” refers at the same time to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.
In South-Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter also the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the state.
In the constitution of Georgia, where it is declared, “that the legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardoning, to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature.
In citing these cases in which the legislative, executive and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several state governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances, the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed constitution, of violating a sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author; nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.
Publius.


Title: To James Madison from William Moore, 31 January 1788
From: Moore, William
To: Madison, James

Dear Sir,
Orange 31st. Jany 1788
From the foregoing information of your Father of the Fluctuating Sentiments of the Freeholders of this County on the Constitution proposed by the Convention at Philidelphia and the Arts of some Men in this County to mislead the People whose Interest you know are repugnant to a Govermt. that will Administer Justice, safety, protection, and true Liberty to the Good and Virtuous Citizens of America and as you well know the disadvantage of being absent at Elections to those who offer themselves to serve the Public I must therefore intreat and conjure you nay commd. you, if it was in my Power, to be here in Feberuary or the first of March Next if you do, I think your Election will be certain, (if not I believe from reports you it will be uncertain) and you will in that case be able to silence the disaffected and give that assistance to the Constitution that your knowledge of it and the Necess[i]ty of such Establishment to the well being and the future Pro[s]perity of America. However Sir be assured that the Friends of the Constitution will promote your Interest at any rate. But let me repeat it again, as a Lover of your Country, pray dont disappoint the wishes of your Friends and many others who are wavering on the Constitution that are anxiously waiting for an Explanation from you in short they want your Sentiments from your own mouth which they say will convin[c]e them of the necessity of adobpting it. I am my Dr Sir, yours Affectionately
Wm. Moore
P.S. I repeat again come—


Title: The Federalist Number 49, [2 February] 1788
From: Madison, James
To:

[2 February 1788]
The author of the “Notes on the state of Virginia,” quoted in the last paper, has subjoined to that valuable work, the draught of a constitution which had been prepared in order to be laid before a convention expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power, against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present enquiry, ought not to be overlooked.
His proposition is, “that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it, a convention shall be called for the purpose.”
As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived; it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves; who, as the grantors of the commission, can alone declare its true meaning and enforce its observance?
There is certainly great force in this reasoning, and it must be allowed to prove, that a constitutional road to the decision of the people, ought to be marked out, and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.
In the first place, the provision does not reach the case of a combination of two of the departments against a third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from this remedial provision. I do not dwell however, on this objection, because it may be thought to lie rather against the modification of the principle, than against the principle itself.
In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are antient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.
But the greatest objection of all is that the decisions which would probably result from such appeals, would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative, at the expence of the other departments. The appeals to the people therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: and their administration is always liable to be discoloured and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause most successfully with the people: They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.
It might however sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious colouring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measures, to which the decision would relate. The passions therefore not the reason, of the public, would sit in judgment. But it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government.
We found in the last paper that mere declarations in the written constitution, are not sufficient to restrain the several departments within their legal limits. It appears in this that occasional appeals to the people would be neither a proper nor an effectual provision, for that purpose. How far the provisions of a different nature contained in the plan above quoted, might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision.
Publius.