Title: General Defense of the Constitution, [12 June] 1788
From: Madison, James
To:

[12 June 1788]

   JM replied to another of Henry’s sweeping attacks on the Constitution.

Mr. Madison. Mr. Chairman, Pardon me for making a few remarks on what fell from the honorable gentleman last up. I am sorry to follow the example of gentlemen in deviating from the rule of the house: But as they have taken the utmost latitude in their objections, it is necessary that those who favor the government should answer them. But I wish as soon as possible to take up the subject regularly. I will therefore take the liberty to answer some observations which have been irregularly made, though they might be more properly answered when we came to discuss those parts of the constitution to which they respectively refer. I will, however, postpone answering some others till then. If there be that terror in direct taxation, that the states would comply with requisitions to guard against the federal legislature; and if, as gentlemen say, this state will always have it in her power to make her collections speedily and fully, the people will be compelled to pay the same amount as quickly and punctually as if raised by the general government.
It has been amply proved, that the general government can lay taxes as conveniently to the people as the state governments, by imitating the state systems of taxation. If the general government have not the power of collecting its own revenues, in the first instance, it will be still dependent on the state governments in some measure; and the exercise of this power after refusal, will be inevitably productive of injustice and confusion, if partial compliances be made before it is driven to assume it. Thus, sir, without relieving the people in the smallest degree, the alternative proposed will impair the efficacy of the government, and will perpetually endanger the tranquillity of the union.
The honorable member’s objection with respect to requisitions of troops will be fully obviated at another time. Let it suffice now to say, that it is altogether unwarrantable, and founded upon a misconception of the paper before you. But the honorable member in order to influence our decision, has mentioned the opinion of a citizen who is an ornament to this state. When the name of this distinguished character was introduced, I was much surprised. Is it come to this then, that we are not to follow our own reason? Is it proper to introduce the opinions of respectable men not within these walls? If the opinion of an important character were to weigh on this occasion, could we not adduce a character equally great on our side? Are we who (in the honorable gentleman’s opinion) are not to be governed by an erring world, now to submit to the opinion of a citizen beyond the Atlantic? I believe that were that gentleman now on this floor, he would be for the adoption of this constitution. I wish his name had never been mentioned. I wish every thing spoken here relative to his opinion may be suppressed if our debates should be published. I know that the delicacy of his feelings will be wounded when he will see in print what has and may be said, concerning him on this occasion. I am in some measure acquainted with his sentiments on this subject. It is not right for me to unfold what he has informed me. But I will venture to assert, that the clause now discussed, is not objected to by Mr. Jefferson. He approves of it, because it enables the government to carry on its operations. He admires several parts of it, which have been reprobated with vehemence in this house. He is captivated with the equality of suffrage in the senate, which the honorable gentleman (Mr. Henry) calls the rotten part of this constitution. But whatever be the opinion of that illustrious citizen, considerations of personal delicacy should dissuade us from introducing it here.
The honorable member has introduced the subject of religion. Religion is not guarded—there is no bill of rights declaring that religion should be secure. Is a bill of rights a security for religion? Would the bill of rights in this state exempt the people from paying for the support of one particular sect, if such sect were exclusively established by law? If there were a majority of one sect, a bill of rights would be a poor protection for liberty. Happily for the states, they enjoy the utmost freedom of religion. This freedom arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society. For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest. Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment—I believe it to be so in the other states. There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation. I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. It is better that this security should be depended upon from the general legislature, than from one particular state. A particular state might concur in one religious project. But the United States abound in such a variety of sects, that it is a strong security against religious persecution, and is sufficient to authorise a conclusion, that no one sect will ever be able to out-number or depress the rest.
I will not travel over that extensive tract, which the honorable member has traversed. I shall not now take notice of all his desultory objections. As occasions arise, I shall answer them.
It is worthy of observation on this occasion, that the honorable gentleman himself, seldom fails to contradict the arguments of gentlemen on that side of the question. For example, he strongly complains that the federal government from the number of its members will make an addition to the public expence, too formidable to be borne; and yet he and other gentlemen on the same side, object that the number of representatives is too small, though ten men are more than we are entitled to under the existing system! How can these contradictions be reconciled? If we are to adopt any efficient government at all, how can we discover or establish such a system, if it be thus attacked? Will it be possible to form a rational conclusion upon contradictory principles? If arguments of a contradictory nature were to be brought against the wisest and most admirable system, to the formation of which human intelligence is competent, it never could stand them.
He has acrimoniously inveighed against the government, because such transactions as congress think require secrecy, may be concealed—and particularly those which relate to treaties. He admits that when a treaty is forming, secrecy is proper; but urges that when actually made, the public ought to be made acquainted with every circumstance relative to it. The policy of not divulging the most important transactions, and negociations of nations, such as those which relate to warlike arrangements and treaties, is universally admitted. The congressional proceedings are to be occasionally published, including all receipts and expenditures of public money, of which no part can be used, but in consequence of appropriations made by law. This is a security which we do not enjoy under the existing system. That part which authorises the government to withhold from the public knowledge what in their judgment may require secrecy, is imitated from the confederation—that very system which the gentleman advocates.
No treaty has been formed, and I will undertake to say, that none will be formed under the old system, which will secure to us the actual enjoyment of the navigation of the Mississippi. Our weakness precludes us from it. We are entitled to it. But it is not under an inefficient government that we shall be able to avail ourselves fully of that right. I most conscientiously believe, that it will be far better secured under the new government, than the old, as we will be more able to enforce our right. The people of Kentucky will have an additional safe-guard from the change of system. The strength and respectability of the union will secure them in the enjoyment of that right, till that country becomes sufficiently populous. When this happens, they will be able to retain it in spite of every opposition.
I never can admit that seven states are disposed to surrender that navigation. Indeed it never was the case. Some of their most distinguished characters are decidedly opposed to its relinquishment. When its cession was proposed by the southern states, the northern states opposed it. They still oppose it. New-Jersey directed her delegates to oppose it, and is strenuously against it. The same sentiments pervade Pennsylvania: At least I am warranted to say so, from the best information which I have. Those states, added to the southern states, would be a majority against it.
The honorable gentleman, to obviate the force of my observations with respect to concurrent collections of taxes under different authorities, said, that there was no interference between the concurrent collections of parochial, county and state taxes, because they all irradiated from the same centre; but that this was not the case with the general government. To make use of the gentleman’s own term, the concurrent collections under the authorities of the general government and state governments, all irradiate from the people at large. The people is their common superior. The sense of the people at large is to be the predominant spring of their actions. This is a sufficient security against interference.
Our attention was called to our commercial interest, and at the same time the landed interest was said to be in danger. If those ten men who were to be chosen, be elected by landed men, and have land themselves, can the electors have any thing to apprehend? If the commercial interest be in danger, why are we alarmed about the carrying trade? Why is it said, that the carrying states will preponderate, if commerce be in danger? With respect to speculation, I will remark that stock-jobbing has more or less prevailed in all countries, and ever will in some degree, notwithstanding any exertions to prevent it. If you judge from what has happened under the existing system, any change would render a melioration probable.


Title: From James Madison to Rufus King, 13 June 1788
From: Madison, James
To: King, Rufus

Dear Sir
Richmd. June 13th. 88.
I am tolerably well over the bilious indisposition which confined me at the date of my last. The progress of the Convention is extremely slow; though from the impatience of the members, I think the Session will not be long. The issue of it is more doubtful than was apprehended when I last wrote. The ostensible points of opposition are direct taxation, the imperfect representation in the H. of Reps.; the equality in the Senate, regulation of Trade by majority—& the Judiciary departmt. The first & last are dwelt on most. Besides these, the Missippi., the Indiana claim with some other local matters are made a great handle of, particularly out of doors where the cheif mischeif is effected. My present idea is that the vote of Kentucky will turn the scale, and there is perhaps more to fear than to hope from that quarter. The members arrived generally under an adverse bias produced by a combination of efforts to mislead them. The majority on either side will be small & at present the event is as ticklish as can be conceived. The leaders of the opposition are in correspondence with New York & probably with the Minority of Pensylva. Oswald was here a day or two on confidential business with them and is returned. Adieu Yrs. affely.
Js. Madison Jr


Title: From James Madison to George Washington, 13 June 1788
From: Madison, James
To: Washington, George

Dear Sir
Richmond June 13th. 1788.
Your favour of  came to hand by the mail of Wednesday. I did not write by several late returns for two reasons; one the improbability of having got back to Mount Vernon; the other a bilious indisposition which confined me for some days. I am again tolerably well recovered.
Appearances at present are less favorable than at the date of my last. Our progress is slow and every advantage is taken of the delay, to work on the local prejudices of particular setts of members. British debts, the Indiana claim, and the Missippi. are the principal topics of private discussion & intrigue, as well as of public declamation. The members who have served in Congress have been dragged into communications on the first which would not be justifiable on any other occasion if on the present. There is reason to believe that the event may depend on the Kentucky members; who seem to lean more agst. than in favor of the Constitution. The business is in the most ticklish state that can be imagined. The majority will certainly be very small on whatever side it may finally lie; and I dare not encourage much expectation that it will be on the favorable side.
Oswald of Philada. has been here with letters for the antifederal leaders from N. York and probably Philada. He staid a very short time here during which he was occasionally closeted with H——y Ma—s—n &c. I learn from N. York that the elections have proved adverse to the Constitution. Yours Affectly.
Js. Madison Jr.


Title: The Mississippi Question, [13 June] 1788
From: Madison, James
To:

[13 June 1788]

   Henry asked for information from those delegates who had served in Congress when a treaty with Spain covering navigation rights on the Mississippi had been debated. Henry Lee, Monroe, and Grayson spoke ahead of JM.

Mr. Madison. Mr. Chairman—It is extremely disagreeable to me to enter into this discussion, as it is foreign to the object of our deliberations here, and may, in the opinion of some, lead to sully the reputation of our public councils. As far as my memory will enable me, I will develop the subject. We will not differ with one another with respect to facts: perhaps we may differ with respect to principles. I will take the liberty to observe, that I was led before to make some observations, which had no relation to the subject under consideration, as relative to the western country, to obviate suggestions of gentlemen, which seemed to me to be groundless. I stated that there was a period when the southern states were advocates for the alienation or suspension of the right to the Mississippi, (I will not say which) and the eastern states were against both. I mentioned this to shew, that there was no disposition in that part, to surrender that right or dispose of that country. I do suppose that the fishery had its influence on those states. No doubt it was the case. For that, and other reasons, they still continue against the alienation. For it might lessen the security of retaining the fishery. From the best information, it never was the sense of the people at large, or the prevailing characters of the eastern states, to approve of the measure. If interest,, sir, should continue to operate on them, I humbly conceive, that they will derive more advantage from holding the Mississippi, than even the southern states. For, if the carrying business be their natural province, how can it be so much extended and advanced, as by giving the encouragement to agriculture in the western country, and having the emolument of carrying their produce to market? The carrying trade must depend on agriculture for its support in a great measure. In what place is agriculture so capable of improvement and great extension, as in the western country? But whatever considerations may prevail in that quarter, or any other, respecting their interest, I think we may fairly suppose that the consideration which the honorable member mentioned, and which has been repeated, I mean the emigrations which are going on to the westward, must produce the same effect as to them, which it may produce with respect to us. Emigrations are now going on from that quarter as well as from this state.
I readily confess that neither the old confederation, nor the new constitution, involves a right to give [up] the navigation of the Mississippi. It is repugnant to the law of nations. I have always thought and said so. Although the right be denied, there may be emergencies which will make it necessary to make a sacrifice. But there is a material difference between emergencies of safety in time of war, and those which may relate to mere commercial regulations. You might on solid grounds deny in time of peace, what you give up in time of war. I do not conceive, however, that there is that extreme aversion in the minds of the people of the eastern states, to emigrate to the westward, which was insinuated by my honorable friend. Particular citizens, it cannot be doubted, may be averse to it. But it is the sense of the people at large, which will direct the public measures. We find from late arrangements made between Massachusetts and New-York, that a very considerable country to the westward of New-York, was disposed of to Massachusetts, and by Massachusetts to some individuals, to conduct emigrants to that country.
There were seven states who thought it right to give up the navigation of the Mississippi for 25 years, for several reasons which have been mentioned. As far as I can recollect, it was nearly as my honorable friend said. But they had no idea of absolutely alienating it. I think one material consideration which governed them was, that there were grounds of serious negotiation between Great-Britain and Spain, which might bring on a coalition between those nations, which might enable them to bind us on different sides, permanently withhold that navigation from us, and injure us in other respects materially. The temporary cession, it was supposed, would fix the permanent right in our favor, and prevent that dangerous coalition. It is but justice to myself to say, that however plausible the reasons urged for its temporary cession may have been, they never convinced me of its utility. I have uniformly disapproved of it, and do now.
With respect to the secretary of foreign affairs, I am intimately connected with him. I shall say nothing of his abilities and attachment to his country. His character is established in both respects. He has given a train of reasoning which governed him in his project. If he was mistaken, his integrity and probity more than compensate for the error.
I am led to think there is no settled disposition in seven states to give up that object, because New-Jersey on a further consideration of the subject, actually gave instructions to her delegates to oppose it. And what was the ground of this? I do not know the extent and particular reasons of her instructions. But I recollect, that a material consideration was, that the cession of that river would diminish the value of the western country, which was a common fund for the United States, and would consequently tend to impoverish their public treasury. These, sir, were rational grounds.
Give me leave, sir, as I am upon this subject, and as the honorable gentleman has raised a question, whether it be not more secure under the old than the new constitution—to differ from him. I shall enter into the reasoning which, in my mind, renders it more secure under the new system—Two thirds of the senators present, (which will be nine states, if all attend to their duty) and the president must concur in every treaty which can be made. Here are two distinct and independent branches, which must agree to every treaty. Under the existing system two thirds of the states must concur to form a treaty. But it is but one body. Gentlemen may reason and conclude differently on this subject. I own that as far as I have any rights, which are but trivial, I would rather trust them to the new than the old government. Besides, let me observe, that the house of representatives will have a material influence on the government, and will be an additional security in this respect: but there is one thing which he mentioned, which merits attention. If commercial policy be a source of great danger, it will have less influence in the new system, than in the old. For in the house of representatives, it will have little or no influence. They are drawn from the landed interest; taken from the states at large, and many of them from the western country. Whereas the present members of congress have been taken from the Atlantic side of the continent. When we calculate the dangers that may arise in any case, we judge from the rules of proportion and chances of numbers. The people at large choose those who elect the president. The weight of population will be to the southward, if we include the western country. There will then be a majority of the people in favor of this right. As the president must be influenced by the sense and interest of his electors, as far as it depends on him (and his agency in making treaties is equal to that of the senate) he will oppose the cession of that navigation. As far as the influence of the representatives goes, it will also operate in favor of this right. The power of treaties is not lodged in the senators of particular states. Every state has an equal weight. If ten senators can make a treaty, ten senators can prevent one from being made. It is from a supposition, that all the southern delegates will be absent, that ten senators, or two thirds of a majority, can give up this river. The possibility of absence operates equally as much against the northern states. If one-fifth of the members present think the measure erroneous, the votes of the states are to be taken upon it, and entered on the journals. Every gentleman here ought to recollect, that this is some security, as the people will thereby know those who advocate iniquitous measures. If we consider the number of changes in the members of the government, we will find it another security. But after all, sir, what will this policy signify, which tends to surrender the navigation of the Mississippi? Resolutions of congress to retain it, may be repeated, and re-echoed from every part of the United States. It is not resolutions of this sort, which the people of this country wish for. They want an actual possession of the right, and protection in its enjoyment. Similar resolutions have been taken under the existing system, on many occasions. But they have been heretofore, and will be hereafter, in my opinion, nugatory and fruitless, unless a change takes place which will give energy to the acts of the government.
I will take the liberty to touch once more on the several considerations which produced the question, because perhaps the committee may not yet thoroughly comprehend it. In justice to those gentlemen who concluded in favor of the temporary cession, I mention their reasons, although I think the measure wrong. The reasons for so doing under the old system, will be done away by the new system. We could not, without national dishonor, assert our right to the Mississippi, and suffer any other nation to deprive us of it. This consideration, with others before mentioned, influenced them. I admit it was wrong. But it is sufficient to prove that they acted on principles of integrity. Will they not be bound by honor and conscience, when we are able to enjoy and retain our right, not to give it up, or suffer it to be interrupted? A weak system produced this project. A strong system will remove the inducement. For may we not suppose it will be reversed by a change of system? I was called up to say what was its present situation. There are some circumstances within my knowledge which I am not at liberty to communicate to this house. I will not go farther than to answer the objections of gentlemen. I wish to conceal no circumstance which I can relate consistently with my duty. As to matters of fact, I have advanced nothing which I presume will be contradicted. On matters of opinion, we may differ. Were I at liberty, I could develop some circumstances, which would convince this house, that this project will never be revived in congress, and that therefore no danger is to be apprehended.


Title: From James Madison to Alexander Hamilton, 13 June 1788
From: Madison, James
To: Hamilton, Alexander

Letter not found. 13 June 1788. Mentioned in Hamilton to JM, 25 June 1788. Describes the critical outlook for ratification of the Constitution at the Richmond convention.


Title: Power to Regulate Elections, [14 June] 1788
From: Madison, James
To:

[14 June 1788]

   After Sections 4 and 5 of Article I were read, Monroe asked why the regulation of elections for members of Congress was under the “ultimate controul” of the national legislature, “and also why there was an exception as to the place of electing senators” (Robertson, Virginia DebatesDavid Robertson, Debates and Other Proceedings of the Convention of Virginia (2d
        ed.; Richmond, 1805)., p. 261).

Mr. Madison. Mr. Chairman—The reason of the exception was, that if congress could fix the place of choosing the senators, it might compel the state legislatures to elect them in a different place from that of their usual sessions, which would produce some inconvenience, and was not necessary for the object of regulating the elections. But it was necessary to give the general government a controul over the time and manner of choosing the senators, to prevent its own dissolution.
With respect to the other point, it was thought that the regulation of time, place, and manner of electing the representatives, should be uniform throughout the continent. Some states might regulate the elections on the principles of equality, and others might regulate them otherwise. This diversity would be obviously unjust. Elections are regulated now unequally in some states, particularly South-Carolina, with respect to Charleston, which is represented by 30 members. Should the people of any state, by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government. It was found impossible to fix the time, place, and manner, of the election of representatives in the constitution. It was found necessary to leave the regulation of these, in the first place, to the state governments, as being best acquainted with the situation of the people, subject to the controul of the general government, in order to enable it to produce uniformity, and prevent its own dissolution. And considering the state governments and general government as distinct bodies, acting in different and independent capacities for the people, it was thought the particular regulations should be submitted to the former, and the general regulations to the latter. Were they exclusively under the controul of the state governments, the general government might easily be dissolved. But if they be regulated properly by the state legislatures, the congressional controul will very probably never be exercised. The power appears to me satisfactory, and as unlikely to be abused as any part of the constitution.


Title: Salaries for Congress and Eligibility for Federal Offices, [14 June] 1788
From: Madison, James
To:

[14 June 1788]

   Henry complained that Article I, Section 6, was dangerous in allowing members of Congress to fix their own salaries and to be appointed to federal offices.

Mr. Madison. Mr. Chairman—I most sincerely wish to give a proper explanation on this subject, in such a manner as may be to the satisfaction of every one. I shall suggest such considerations as led the convention to approve of this clause. With respect to the right of ascertaining their own pay, I will acknowledge, that their compensations, if practicable, should be fixed in the constitution itself, so as not to be dependent on congress itself, or on the state legislatures. The various vicissitudes, or rather the gradual diminution of the value of all coins and circulating medium, is one reason against ascertaining them immutably; as what may be now an adequate compensation, might, by the progressive reduction of the value of our circulating medium, be extremely inadequate at a period not far distant.
It was thought improper to leave it to the state legislatures, because it is improper that one government should be dependent on another: and the great inconveniencies experienced under the old confederation, shew, that the states would be operated upon by local considerations, as contradistinguished from general and national interests. Experience shews us, that they have been governed by such heretofore, and reason instructs us, that they would be influenced by them again. This theoretic inconvenience of leaving to congress the fixing their compensations, is more than counterbalanced by this in the confederation; that the state legislatures had a right to determine the pay of the members of congress, which enabled the states to destroy the general government. There is no instance where this power has been abused. In America, legislative bodies have reduced their own wages lower rather than augmented them. This is a power which cannot be abused without rousing universal attention and indignation. What would be the consequence of the Virginian legislature raising their pay to four or five pounds each per day? The universal indignation of the people. Should the general congress annex wages disproportionate to their service, or repugnant to the sense of the community, they would be universally execrated. The certainty of incurring the general detestation of the people will prevent abuse. It was conceived that the great danger was in creating new offices, which would increase the burdens of the people: and not in an uniform admission of all meritorious characters to serve their country in the old offices. There is no instance of any state constitution which goes as far as this. It was thought to be a mean between two extremes. It guards against abuse by taking away the inducement to create new offices, or increase the emoluments of old offices. And it gives them an opportunity of enjoying, in common with other citizens, any of the existing offices which they may be capable of executing. To have precluded them from this, would have been to exclude them from a common privilege to which every citizen is entitled, and to prevent those who had served their country with the greatest fidelity and ability from being on a par with their fellow-citizens. I think it as well guarded as reason requires: More so than the constitution of any other nation.


Title: From James Madison to Alexander Hamilton, 16 June 1788
From: Madison, James
To: Hamilton, Alexander

My dear SirRichmond June 16. 1788
Yours of the 8th is just come to hand. I mentioned in my last that Oswald had been here in consultation with the Antifedl. leaders. The contents of your letter confirm the idea that a negociation for delay is [on] foot between the opposition here & with you. We have conjectured for some days that the policy is to spin out the Session in order to receive overtures from your Convention; or if that cannot be to weary the members into an adjournment without taking any decision. It [is] presumed at the same time that they do not despair of carrying the point of previous amendments which is preferable game. The parties continue to be nicely balanced. If we have a majority at all it does not exceed three or four. If we lose it Kentucke will be the cause, they are generally if not unanimously against us.
I have been partially recovered since my last but to day have a [bit?] of relapse. My health is not good, and the business is wearisome beyond expression. I wish you every happiness & am Yrs.
Js. Madison Jr


Title: Power of Congress to Direct Military Forces, [16 June] 1788
From: Madison, James
To:

[16 June 1788]

   Henry continued his harangue against the powers granted Congress under Article I, Section 8, dwelling particularly on the power to raise armies and to call forth the militia to execute the laws and suppress insurrection.

Mr. Madison. Mr. Chairman—I will endeavor to follow the rule of the house; but must pay due attention to the observations which fell from the gentleman. I should conclude, from abstracted reasoning, that they were ill founded. I should think, that if there were any object, which the general government ought to command, it would be the direction of the national forces. And as the force which lies in militia is most safe, the direction of that part ought to be submitted to, in order to render another force unnecessary. The power objected to is necessary, because it is to be employed for national purposes. It is necessary to be given to every government. This is not opinion, but fact. The highest authority may be given: That the want of such authority in the government protracted the late war, and prolonged its calamities.
He says, that one ground of complaint at the beginning of the revolution, was, that a standing army was quartered upon us. This was not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America. As to the exclusion of standing armies in the bills of rights of the states, we shall find, that though in one or two of them, there is something like a prohibition, yet in most of them it is only provided, that no armies shall be kept up without the legislative authority; that is, without the consent of the community itself. Where is the impropriety of saying we shall have an army, if necessary? Does not the notoriety of this constitute security? If inimical nations were to fall upon us when defenceless, what would be the consequence? Would it be wise to say, that we should have no defence? Give me leave to say that the only possible way to provide against standing armies, is, to make them unnecessary. The way to do this, is to organize and discipline our militia, so as to render them capable of defending the country against external invasions, and internal insurrections. But it is urged, that abuses may happen. How is it possible to answer objections against possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection to the militia was at an end. Was there ever a constitution, in which, if authority was vested, it must not have been executed by force, if resisted? Was it not in the contemplation of this state, when contemptuous proceedings were expected, to recur to something of this kind? How is it possible to have a more proper resource than this? That the laws of every country ought to be executed, cannot be denied. That force must be used if necessary, cannot be denied. Can any government be established, that will answer any purpose whatever, unless force be provided for executing its laws? The constitution does not say that a standing army shall be called out to execute the laws. Is not this a more proper way? The militia ought to be called forth to suppress smugglers. Will this be denied? The case actually happened at Alexandria. There were a number of smugglers, who were too formidable for the civil power to overcome. The militia quelled the sailors, who, otherwise, would have perpetrated their intentions. Should a number of smugglers have a number of ships, the militia ought to be called forth to quell them. We do not know but what there may be combinations of smugglers in Virginia hereafter. We all know the use made of the Isle of Man. It was a general depositary of contraband goods. The parliament found the evil so great, as to render it necessary to wrest it out of the hands of its possessor.
The honorable gentleman says, it is a government of force. If he means military force, the clause under consideration proves the contrary. There never was a government without force. What is the meaning of government? An institution to make people do their duty. A government leaving it to a man to do his duty, or not, as he pleases, would be a new species of government, or rather no government at all. The ingenuity of the gentleman is remarkable, in introducing the riot-act of Great Britain. That act has no connection, or analogy, to any regulation of the militia: Nor is there any thing in the constitution to warrant the general government to make such an act. It never was a complaint in Great-Britain, that the militia could be called forth. If riots should happen, the militia are proper to quell it, to prevent a resort to another mode. As to the infliction of ignominious punishments, we have no ground of alarm, if we consider the circumstances of the people at large. There will be no punishments so ignominious as have been inflicted already. The militia law of every state to the north of Maryland, is less rigorous than the particular law of this state. If a change be necessary to be made by the general government, it will be in our favor. I think that the people of those states would not agree to be subjected to a more harsh punishment than their own militia laws inflict. An observation fell from a gentleman, on the same side with myself, which deserves to be attended to. If we be dissatisfied with the national government—if we should choose to renounce it, this is an additional safe-guard to our defence. I conceive that we are peculiarly interested in giving the general government as extensive means as possible to protect us. If there be a particular discrimination between places in America, the southern states are, from their situation and circumstances, most interested in giving the national government the power of protecting its members. (Here Mr. Madison made some other observations; but spoke so very low, that his meaning could not be comprehended.) An act passed a few years ago, in this state, to enable the government to call forth the militia to enforce the laws, when a powerful combination should take place to oppose them. This is the same power which the constitution is to have. There is a great deal of difference between calling forth the militia, when a combination is formed to prevent the execution of the laws, and the sheriff or constable carrying with him a body of militia to execute them in the first instance; which is a construction not warranted by the clause. There is an act also in this state, empowering the officers of the customs to summon any persons to assist them when they meet with obstruction in executing their duty. This shews the necessity of giving the government power to call forth the militia when the laws are resisted. It is a power vested in every legislature in the union, and which is necessary to every government.


Title: To James Madison from Edward Carrington, 17 June 1788
From: Carrington, Edward
To: Madison, James

My dear Sir,New York June 17. 1788
I had the pleasure to receive your favor of the 6th. of June—it gives great satisfaction not only to myself, but all the Freinds of Federalism to whom I have had an opportunity to commun[i]cate its contents. You very prudently hazard no decided opinions as to the event, but it appears to me that we may calculate with certainty upon a considerable Majority from the facts you communicate. It is impossible that the present critical state of the business, & the consequent responsibility of Virginia to humanity, for her conduct under such circumstances, should not have enclined most of the opposition, who can descern the hazards of persevering, to follow Governor Randolph in taking the other side.
The President has just shewn me your letter to him mentioning your indisposition. I regret it much, but hope you have before this perfectly recovered, so as to resume your Station in the House.
The Convention of New York is now assembling at Poughkepsi—the Antifederalists, who are indeed the Majority, have received a shock from the Accounts from Virga. but it seems they are so fixd in their principles that they will probably, at least adjourn without adopting the Constitution.
Present to our Freinds Innes & Marshall and beleive me to be my dear Sr. Your Afft. Freind & Hl St.
Ed. Carrington


Title: To James Madison from James Mchenry, 17 June 1788
From: McHenry, James
To: Madison, James

Dear Sir,Baltimore 17 June 1788.
To-nights post has brought me intelligence from your convention which induces me to send you the inclosed authentic information respecting the present state of the opposition to the constitution in Pennsylvania. I find the same misrepresentations have been played upon the uninformed with you which was practised with us. You are at liberty to make them as public as you please. The letter is from the chief Justice and the certificate from the clerk of the General Assembly. You will return them, and I hope, (tho’ I am full of fears) with them the desirable news of your State having adopted the constitution. God be with you. Adieu
James McHenry


Title: Slave Trade and Slaveholders’ Rights, [17 June] 1788
From: Madison, James
To:

[17 June 1788]

   The importation of slaves until 1808, guaranteed by Article I, Section 9, was attacked by Mason as “a fatal section, which has created more dangers than any other.” Mason said “this infamous traffic” would continue, but those who already owned slaves had “no security for the property of that kind” (Robertson, Virginia DebatesDavid Robertson, Debates and Other Proceedings of the Convention of Virginia (2d
        ed.; Richmond, 1805)., p. 321).

Mr. Madison. Mr. Chairman—I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The southern states would not have entered into the union of America, without the temporary permission of that trade. And if they were excluded from the union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The union in general is not in a worse situation. Under the articles of confederation, it might be continued forever: But by this clause an end may be put to it after twenty years. There is therefore an amelioration of our circumstances. A tax may be laid in the mean time; but it is limited, otherwise congress might lay such a tax as would amount to a prohibition. From the mode of representation and taxation, congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws. For the laws of the states are uncharitable to one another in this respect. But in this constitution, “no person held to service, or labor, in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” This clause was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as he supposes. They cannot prevent the importation of slaves for twenty years; but after that period they can. The gentlemen from South-Carolina and Georgia argued in this manner: “We have now liberty to import this species of property, and much of the property now possessed, has been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets.” I need not expatiate on this subject. Great as the evil is, a dismemberment of the union would be worse. If those states should disunite from the other states, for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.


Title: From James Madison to Tench Coxe, 18 June 1788
From: Madison, James
To: Coxe, Tench

Dear SirRichd. June 18 —88
No question has been yet taken by which the strength of parties can be ascertained. Each hopes for victory. There will not probably be half a dozen for a majority on either side. I hope & think that if no accident happens the Constitution will carry the point. But when the balance is so extremely nice, it is improper not to mingle doubts with our expectations. A few days will probably decide the matter. In haste Yrs. Affely.
Js. Madison
This instant your favr. of 11. is handed to me.


Title: From James Madison to Rufus King, 18 June 1788
From: Madison, James
To: King, Rufus

Dear SirRichmond June 18. 1788.
No question has yet been taken by which real strength of parties in our Convention can be measured. There is not a majority of more than three or four on either side. Both sides claim it. I think however it rather lies as yet in favor of the Constitution. But it is so small as to justify apprehensions from accidents as well as change of opinion. An unwillingness to risk a positive decision on so small a superiority of numbers may also operate on some of the cautious & moderate friends of the Constitution. The other party evidently wish to procrastinate. They may hear from the Convention of N. York, they may work on some of the least decided friends of the Constitution; they may weary out the patience of the House, and prepare it for an adjournment rather than remain longer at this season from home and at a place extremely disagreeable for sundry reasons at this time; these reasons enforced by a distrust of their number, will account for the policy of delay. Previous amendments will either be tried or give place to an effort to adjourn, as circumstances may point out to the leaders in opposition. I have been much indisposed & continue so in a degree which barely allows me to co-operate in the business. This will be an apology for not being more full in my communications; and will account for any unpunctuality in those already made, or which may follow. Adieu Yrs. Affecly.
Js. Madison Jr


Title: To James Madison from Cyrus Griffin, 18 June 1788
From: Griffin, Cyrus
To: Madison, James

My dear sirN: Y: June 18th: [1788]
We are all extremely uneasy at your Indisposition—how much to be regretted indeed! And particularly when such important matters are under deliberation—but I hope that kind Heaven has restored you before this day, to be a farther blessing and honor to your Country!
We are not very sanguine upon the event of the proposed constitution in Virginia—’tho your kind letters give us some degree of spirits. Above all things take charge of your health. Most affly.
C Griffin
A small North River Brig has just arrived from China with a valuable Cargo, but no Intelligence.


Title: Method of Electing the President, [18 June] 1788
From: Madison, James
To:

[18 June 1788]
The Antifederalists maintained that the electoral college created by Article II, Section 1, would result in the choice of a president by less than a majority of those eligible to vote.
Mr. Madison. Mr. Chairman—I will take the liberty of making a few observations which may place this in such a light as may obviate objections. It is observable, that none of the honorable members objecting to this, have pointed out the right mode of election. It was found difficult in the convention, and will be found so by any Gentleman who will take the liberty of delineating a mode of electing the president, that would exclude those inconveniences which they apprehend. I would not contend against some of the principles laid down by some gentlemen if the interests of some states only were to be consulted. But there is a great diversity of interests. The choice of the people ought to be attended to. I have found no better way of selecting the man in whom they place the highest confidence, than that delineated in the plan of the convention—nor has the gentleman told us. Perhaps it will be found impracticable to elect him by the immediate suffrages of the people. Difficulties would arise from the extent and population of the states. Instead of this, the people choose the electors. This can be done with ease and convenience, and will render the choice more judicious. As to the eventual voting by states, it has my approbation. The lesser states, and some large states, will be generally pleased by that mode. The deputies from the small states argued, (and there is some force in their reasoning) that when the people voted, the large states evidently had the advantage over the rest, and without varying the mode, the interests of the little states might be neglected or sacrificed. Here is a compromise. For in the eventual election, the small states will have the advantage. In so extensive a country, it is probable that many persons will be voted for, and the lowest of the five highest on the list may not be so inconsiderable as he supposes. With respect to the possibility, that a small number of votes may decide his election, I do not know how, nor do I think that a bare calculation of possibility ought to govern us. One honorable gentleman has said, that the eastern states may, in the eventual election, choose him. But in the extravagant calculation he has made, he has been obliged to associate North-Carolina and Georgia, with the five smallest northern states. There can be no union of interests or sentiments between states so differently situated.
The honorable member last up has committed a mistake in saying, there must be a majority of the whole number of electors appointed. A majority of votes, equal to a majority of the electors appointed, will be sufficient. Forty-six is a majority of ninety-one, and will suffice to elect the president.…
Mr. Madison, expressed astonishment at the construction of the honorable member, and insisted, that nothing was necessary but a number of votes equal to a majority of the electors, which was forty-six. For the clause expressly said, that “the person having the greatest number of votes shall be president, if such number be a majority of the whole number of electors appointed.” Each had two votes, because one vote was intended for the Vice-President. I am surprised, continued Mr. Madison, that the honorable member has not pointed out a more proper mode, since he objects to this.
But the honorable gentleman tells us, that the president and senate will be in alliance against the representatives, and that from the advantage of the few over the many, they may seduce, or over-rule the representatives. But if this be the case, how can he contend for the augmentation of the number of the latter? For the more you increase their number, the more danger in the disproportion. The diversity of circumstances, situation and extent of the different states, will render previous combination, with respect to the election of the president, impossible.


Title: Powers of the President, [18 June] 1788
From: Madison, James
To:

[18 June 1788]
Mr. Madison, adverting to Mr. Mason’s objection to the president’s power of pardoning, said, it would be extremely improper to vest it in the house of representatives, and not much less so to place it in the senate; because numerous bodies were actuated more or less by passion, and might in the moment of vengeance forget humanity. It was an established practice in Massachusetts for the legislature to determine in such cases. It was found, says he, that two different sessions, before each of which the question came, with respect to pardoning the delinquents of the rebellion, were governed precisely by different sentiments—the one would execute with universal vengeance, and the other would extend general mercy.
There is one security in this case to which gentlemen may not have adverted: If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him: They can remove him if found guilty: They can suspend him when suspected, and the power will devolve on the vice-president: Should he be suspected also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.…
Mr. Madison replied, that the honorable member had misunderstood the fact: For the first assembly was after the rebellion was over. The decision must have been improper in one or the other case. It marks this important truth, says he, that numerous bodies of men are improper to exercise this power. The universal experience of mankind proves it.


Title: To James Madison from Alexander Hamilton, 19 June 1788
From: Hamilton, Alexander
To: Madison, James

Poughkepsie June 19. 1788
Yesterday, My Dear Sir, The Convention made a house. That day and this have been spent in preliminary arrangements. Tomorrow we go into a Committee of the whole on the Constitution. There is every appearance that a full discussion will take place, which will keep us together at least a fortnight. It is not easy to conjecture what will be the result. Our adversaries greatly outnumber us. The leaders gave indications of a pretty desperate disposition in private conversations previous to the meeting; but I imagine the minor partisans have their scruples and an air of moderation is now assumed. So far the thing is not to be despaired of. A happy issue with you must have considerable influence upon us. I have time to add nothing more than the assurances of my sincere attachment
A Hamilton


Title: From James Madison to Alexander Hamilton, 20 June 1788
From: Madison, James
To: Hamilton, Alexander

Dear SirRichmond June 20. 1788.
Our debates have advanced as far as the Judiciary Department against which a great effort is making. The Appellate connazance of fact, and an extension of the power to causes between Citizens of different States, with some lesser objections are the topics cheifly dwelt on. The retrospection to cases antecedent to the Constitution, such as British debts, and an apprehended revival of the Fairfax Indiana Vandalia &c. claims are also brought into view in all the terrific colours which imagination can give them. A few days more will probably produce a decision; though it is surmized that something is expected from your Convention in consequence of the Mission formerly suggested to you. Delay & an adjournment will be tried if the adverse party find their numbers inferior, and can prevail on themselves to remain here till the other side can be wearied into that mode of relieving themselves. At present It is calculated that we still retain a majority of 3 or 4; and if we can weather the storm agst. the part under consideration I shall hold the danger to be pretty well over. There is nevertheless a very disagreeable uncertainty in the case; and the more so as there is a possibility that our present strength may be miscalculated. Yrs. Affectly.
Js. Madison Jr.


Title: From James Madison to James Madison, Sr., 20 June 1788
From: Madison, James
To: Madison, James

Hond SirRichmd. June 20. 1788
No question has been yet taken by which the strength of parties can be determined. The calculations on different sides do not accord; each making them under the bias of their particular wishes. I think however the friends of the Constitution are most confident of superiority; and am inclined myself to think they have at this time the advantage of 3 or 4 or possibly more in point of number. The final question will probably decide the contest in a few days more. We are now on the Judiciary Department, against which the last efforts of the Adversaries seem to be made. How far they will be able to make an impression, I can not say. It is not probable that many proselytes will be made on either side. As this will be handed to you at Court you can make its contents known to Majr. Moore, and other friends to whom I have not time separately to write. With my regards to my mother & the family I remain Yr. affece son
Js. Madison Jr


Title: Judicial Powers of the National Government, [20 June] 1788
From: Madison, James
To:

[20 June 1788]

   On 19 June, Mason charged the judicial powers were bound to adversely affect thousands of Virginians directly and undermine the legal systems of the state governments.

Mr. Madison. Mr. Chairman—Permit me to make a few observations which may place this part in a more favorable light than the gentleman placed it in yesterday. It may be proper to remark, that the organization of the general government for the United States, was, in all its parts, very difficult. There was a peculiar difficulty in that of the Executive. Every thing incident to it, must have participated of that difficulty. That mode which was judged most expedient was adopted, till experience should point out one more eligible. This part was also attended with difficulties. It claims the indulgence of a fair and liberal interpretation. I will not deny that, according to my view of the subject, a more accurate attention might place it in terms which would exclude some of the objections now made to it. But if we take a liberal construction, I think we shall find nothing dangerous or inadmissible in it. In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An attention to this may satisfy gentlemen, that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the constitution. There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations. Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the laws of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used, that we should find ourselves authorised to introduce it into the laws of the United States. The first question which I shall consider, is, whether the subjects of its cognizance be proper subjects of a federal jurisdiction. The second will be, whether the provisions respecting it be consistent with safety and propriety, will answer the purposes intended, and suit local circumstances. The first class of cases to which its jurisdiction extends, are those which may arise under the constitution; and this is to extend to equity as well as law. It may be a misfortune that in organizing any government, the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country where it is otherwise. There is a new policy in submitting it to the judiciary of the United States. That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies. With respect to the laws of the union, it is so necessary and expedient that the judicial power should correspond with the legislative, that it has not been objected to. With respect to treaties, there is a peculiar propriety in the judiciary expounding them. These may involve us in controversies with foreign nations. It is necessary therefore, that they should be determined in the courts of the general government. There are strong reasons why there should be a supreme court to decide such disputes. If in any case uniformity be necessary, it must be in the exposition of treaties. The establishment of one revisionary superintending power, can alone secure such uniformity. The same principles hold with respect to cases affecting ambassadors, and foreign ministers. To the same principles may also be referred their cognizance in admiralty and maritime cases. As our intercourse with foreign nations will be affected by decisions of this kind, they ought to be uniform. This can only be done by giving the federal judiciary exclusive jurisdiction. Controversies affecting the interest of the United States ought to be determined by their own judiciary, and not be left to partial local tribunals.
The next case, where two or more states are the parties, is not objected to. Provision is made for this by the existing articles of confederation; and there can be no impropriety in referring such disputes to this tribunal.
Its jurisdiction in controversies between a state and citizens of another state, is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is, that if a state should wish to bring suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens on whom a state may have a claim, being dissatisfied with the state courts. It is a case which cannot often happen, and if it should be found improper, it will be altered. But it may be attended with good effects. This may be illustrated by other cases. It is provided, that citizens of different states may be carried to the federal court. But this will not go beyond the cases where they may be parties. A feme covert may be a citizen of another state, but cannot be a party in this court. A subject of a foreign power having a dispute with a citizen of this state, may carry it to the federal court; but an alien enemy cannot bring suit at all. It appears to me, that this can have no operation but this—to give a citizen a right to be heard in the federal court; and if a state should condescend to be a party, this court may take cognizance of it.
As to its cognizance of disputes between citizens of different states, I will not say it is a matter of such importance. Perhaps it might be left to the state courts. But I sincerely believe this provision will be rather salutary, than otherwise. It may happen that a strong prejudice may arise in some states, against the citizens of others, who may have claims against them. We know what tardy, and even defective administration of justice, has happened in some states. A citizen of another state might not chance to get justice in a state court, and at all events he might think himself injured.
To the next clause there is no objection.
The next case provides for disputes between a foreign state, and one of our states, should such a case ever arise; and between a citizen and a foreign citizen or subject. I do not conceive that any controversy can ever be decided in these courts, between an American state and a foreign state, without the consent of the parties. If they consent, provision is here made. The disputes ought to be tried by the national tribunal. This is consonant to the law of nations. Could there be a more favorable or eligible provision to avoid controversies with foreign powers? Ought it to be put in the power of a member of the union to drag the whole community into war? As the national tribunal is to decide, justice will be done. It appears to me from this review, that, though on some of the subjects of this jurisdiction, it may seldom or never operate, and though others be of inferior consideration, yet they are mostly of great importance, and indispensably necessary.

The second question which I proposed to consider, was, whether such organization be made as would be safe and convenient for the states and the people at large. Let us suppose that the subjects of its jurisdiction had been only enumerated, and power given to the general legislature to establish such courts as might be judged necessary and expedient; I do not think that in that case any rational objection could be made to it, any more than would be made to a general power of legislation in certain enumerated cases. If that would be safe, this appears to me better and more restrictive, so far as it might be abused by an extension of power. The most material part is the discrimination of superior and inferior jurisdiction, and the arrangement of its powers; as, where it shall have original, and where appellate cognizance. Where it speaks of appellate jurisdiction, it expressly provides, that such regulations will be made as will accommodate every citizen, so far as is practicable in any government. The principal criticism which has been made, was against the appellate cognizance, as well of fact as law. I am happy that the honorable member who presides, and who is familiarly acquainted with the subject does not think it involves any thing unnecessarily dangerous. I think that the distinction of fact as well as law, may be satisfied by the discrimination of the civil and common law. But if gentlemen should contend, that appeals as to fact can be extended to jury cases, I contend, that by the word regulations, it is in the power of congress to prevent it, or prescribe such a mode as will secure the privilege of jury trial. They may make a regulation to prevent such appeals entirely: Or they may remand the fact, or send it to an inferior contiguous court, to be tried; or otherwise preserve that ancient and important trial.
Let me observe, that so far as the judicial power may extend to controversies between citizens of different states, and so far as it gives them power to correct by another trial, a verdict obtained by local prejudices, it is favorable to those states who carry on commerce. There are a number of commercial states, who carry on trade for other states. Should the states in debt to them make unjust regulations, the justice that would be obtained by the creditors, might be merely imaginary and nominal. It might be either entirely denied, or partially granted. This is no imaginary evil. Before the war, New-York was to a great amount a creditor of Connecticut: While it depended on the laws and regulations of Connecticut, she might withhold payment. If I be not misinformed, there were reasons to complain. These illiberal regulations and causes of complaint, obstruct commerce. So far as this power may be exercised, Virginia will be benefited by it. It appears to me from the most correct view, that by the word regulations, authority is given them to provide against all inconveniences; and so far as it is exceptionable, they can remedy it. This they will do if they be worthy of the trust we put in them. I think them worthy of that confidence which that paper puts in them. Were I to select a power which might be given with confidence, it would be judicial power. This power cannot be abused, without raising the indignation of all the people of the states. I cannot conceive that they would encounter this odium. Leaving behind them their characters and friends, and carrying with them local prejudices, I cannot think they would run such a risk. That men should be brought from all parts of the union to the seat of government, on trivial occasions, cannot reasonably be supposed. It is a species of possibility; but there is every degree of probability against it. I would as soon believe, that by virtue of the power of collecting taxes or customs, they would compel every man to go and pay the money for his taxes with his own hands to the federal treasurer, as I would believe this. If they would not do the one, they would not the other.
I am of opinion, and my reasoning and conclusions are drawn from facts, that as far as the power of congress can extend, the judicial power will be accommodated to every part of America. Under this conviction, I conclude, that the legislature, instead of making the supreme federal court absolutely stationary, will fix it in different parts of the continent, to render it more convenient. I think this idea perfectly warrantable. There is an example within our knowledge which illustrates it. By the confederation, congress have an exclusive right of establishing rules for deciding in all cases, what captures should be legal, and establishing courts for determining such cases finally. A court was established for that purpose, which was at first stationary. Experience, and the desire of accommodating the decisions of this court to the convenience of the citizens of the different parts of America, had this effect—it soon became a regulation, that this court should be held in different parts of America, and was held so accordingly. If such a regulation was made, when only the interest of the small number of people who are concerned with captures was affected, will not the public convenience be consulted, when that of a very considerable proportion of the people of America will be concerned? It will be also in the power of congress to vest this power in the state courts, both inferior and superior. This they will do, when they find the tribunals of the states established on a good footing. Another example will illustrate this subject further. By the confederation, congress are authorised to establish courts for trying piracies and felonies committed on the high seas. Did they multiply courts unnecessarily in this case? No, sir, they invested the admiralty courts of each state with this jurisdiction. Now, sir, if there will be as much sympathy between congress and the people, as now, we may fairly conclude, that the federal cognizance will be vested in the local tribunals.
I have observed, that gentlemen suppose, that the general legislature will do every mischief they possibly can, and that they will omit to do every thing good which they are authorised to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it: Nor do I go on the grounds mentioned by gentlemen on the other side—that we are to place unlimited confidence in them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.
Having taken this general view of the subject, I will now advert to what has fallen from the honorable gentleman who presides. His criticism is, that the judiciary has not been guarded from an increase of the salary of the judges. I wished myself, to insert a restraint on the augmentation as well as diminution of their compensation; and supported it in the convention. But I was over-ruled. I must state the reasons which were urged. They had great weight. The business must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen, that there would be such an accumulation of business, as would reduce the pay to a most trivial consideration. This reason does not hold as to the president. For in the short period which he presides, this cannot happen. His salary ought not therefore to be increased. It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen, that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.
It was objected, that this jurisdiction would extend to all cases, and annihilate the state courts. At this moment of time it might happen, that there are many disputes between citizens of different states. But in the ordinary state of things I believe that any gentleman will think, that the far greater number of causes—ninety-nine out of an hundred, will remain with the state judiciaries. All controversies directly between citizen and citizen, will still remain with the local courts. The number of cases within the jurisdiction of these courts are very small when compared to those in which the local tribunals will have cognizance. No accurate calculation can be made, but I think that any gentleman who will contemplate the subject at all, must be struck with this truth. (Here Mr. Madison spoke too low to be understood.)
As to vexatious appeals, they can be remedied by congress. It would seldom happen that mere wantonness would produce such an appeal, or induce a man to sue unjustly. If the courts were on a good footing in the states, what can induce them to take so much trouble? I have frequently in the discussion of this subject, been struck with one remark. It has been urged, that this would be oppressive to those who by imprudence, or otherwise [, are] under the denomination of debtors. I know not how this can be conceived. I will venture one observation. If this system should have the effect of establishing universal justice, and accelerating it throughout America, it will be one of the most fortunate circumstances that could happen for those men. With respect to that class of citizens, compassion is their due. To those, however, who are involved in such incumbrances, relief cannot be granted. Industry and œconomy are their only resources. It is in vain to wait for money, or temporise. The great desiderata are public and private confidence. No country in the world can do without them. Let the influx of money be ever so great, if there be no confidence, property will sink in value, and there will be no inducements or emulation to industry. The circulation of confidence is better than the circulation of money. Compare the situation of nations in Europe, where justice is administered with celerity, to that of those where it is refused, or administered tardily. Confidence produces the best effects in the former. The establishment of confidence will raise the value of property, and relieve those who are so unhappy as to be involved in debts. If this be maturely considered, I think it will be found, that as far as it will establish uniformity of justice, it will be of real advantage to such persons. I will not enter into those considerations which the honorable gentleman added. I hope some other gentleman will undertake to answer him.


Title: To James Madison from Alexander Hamilton, 21 June 1788
From: Hamilton, Alexander
To: Madison, James

My Dr. SrPoughkepsie June 21. 1788
I thank you for your letter of the 9h. instant and am glad to learn that you think the chance is in your favour. I hope no disagreeable change may happen. Yet I own I fear something from your indisposition.
Our debate here began on the clause respecting the proportion of representation &c. which has taken up two days. Tomorrow I imagine we shall talk about the power over elections. The only good information I can give you is that we shall be sometime together and take the chance of events.
The object of the party at present is undoubtedly conditional amendments. What effect events may have cannot precisely be foreseen.
I believe the adoption by New Hampshire is certain. Yrs. Affecty
A Hamilton


Title: From James Madison to Alexander Hamilton, 22 June 1788
From: Madison, James
To: Hamilton, Alexander

Dear SirRichmond June 22. 1788.
The Judiciary Department has been on the anvil for several days; and I presume will still be a further subject of disquisition. The attacks on it have apparently made less impression than was feared. But they may be secretly felt by particular interests that would not make the acknowledgment, and wd. chuse to ground their vote agst. the Constitution on other motives. In the course of this week we hope for a close of the business in some form or other. The opponents will probably bring forward a bill of rights with sundry other amendments as conditions of ratification. Should these fail or be despaired of, an adjournment will I think be attempted. And in case of disappointment here also, some predict a secession. I do not myself concur in the last apprehension; though I have thought it prudent to withold, by a studied fairness in every step on the side of the Constitution, every pretext for rash experiments. The plan meditated by the friends the Constitution is to preface the ratification with some plain & general truths that can not affect the validity of the Act: & to subjoin a recommendation which may hold up amendments as objects to be pursued in the constitutional mode. These expedients are rendered prudent by the nice balance of numbers, and the scruples entertained by some who are in general well affected. Whether they will secure us a majority, I dare not positively to declare. Our calculations promise us success by 3 or 4: or possibly 5 or 6 votes. But were there no possibility of mistaking the opinions of some, in reviewing those of so many, the smallness of the majority suggests the danger from ordinary casualties which may vary the result. It unluckily happens that our legislature which meets at this place tomorrow, consists of a considerable majority o[f an]tifederal members. This is another circumstance that ought to [che]ck our confidence. As individuals they may have some influence, and as coming immediately from the people at large they can give any colour they please to the popular sentiments at this moment, and may in that mode throw a bias on the representatives of the people in Convention. Yrs. Affecly.
Js Madison Jr.


Title: From James Madison to Rufus King, 22 June 1788
From: Madison, James
To: King, Rufus

Dear SirRichmond June 22d. 1788.
We are at length approaching the close of our deliberations on the several parts of the Constitution. The Judiciary Department has been gone over; though perhaps it may receive some additional disquisitions. The attack has apparently been less formidable than I had apprehended. Independently of some particular interests, the objections against it have not been calculated in my opinion to make any deep impressions. In the eyes of many this part of the plan stands in a less vulnerable point of view than had been conceived prior to the examination of it. As soon as the remaining articles shall be despatched, some general propositions will be agitated. The opponents will bring forward a bill of rights with sundry other amendments as conditions of ratification; & in case of disappointment will probably aim at an adjournment. Some apprehend a secession; but there are too many moderate and respectable characters on that side to admit such a supposition. It has been judged prudent nevertheless to maintain so exemplary a fairness on our part, (and even in some points to give way to unreasonable pretensions) as will withold every pretext for so rash a step. On the side of the Constitution it is in contemplation to preface the ratification with a declaration of a few obvious truths which can not affect the validity of the act, and to follow it with a recommendation of a few amendments to be pursued in the constitutional mode. This expedient is necessary to conciliate some individuals who are in general well affected, but have certain scruples drawn from their own reflexions, or from the temper of their Constituents. How the vote will stand on the final question, I dare not yet positively decide. Our calculations promise us a majority of 3 or 4, possibly of 5 or 6. Besides the many chances which may vary a result depending on so small a number, it is impossible not to recollect that in so great a number of opinions some may be mistaken. I wish you every happiness and am Dear Sir Your Obedient servt.
Js. Madison Jr.
If Mr. Ghorum be in your neighbourhood present my best regards to him.


Title: From James Madison to George Washington, 25 [23] June 1788
From: Madison, James
To: Washington, George

Dear SirRichmond June Tuesday 25. [23 June 1788]
We got through the constitution by paragraphs today. Tomorrow some proposition for closing the business will be made. On our side a ratification involving a few declaratory truths not affecting its validity will be tendered. The opposition will urge previous amendments. Their conversation to day seemed to betray despair. Col. Mason in particular talked in a style which no other sentiment could have produced. He held out the idea of civil convulsions as the effects of obtruding the Government on the people. He was answered by several and concluded with declaring his determination for himself to acquiesce in the event whatever it might be. Mr. H——y endeavoured to gloss what had fallen from his friend, declared his aversion to the Constitution to be such that he could not take the oath; but that he would remain in peaceable submission to the result. We calculate on a majority, but a bare one. It is possible nevertheless that some adverse circumstance may happen. I am Dr Sr. in haste Yrs. entirely
Js. Madison Jr


Title: To James Madison from William Duer, 23 June 1788
From: Duer, William
To: Madison, James

Dear Sir,New york June 23d. 1788
As it is probable you may not hear by this Post from our Mutual Frend Colo. Hamilton, I take the Liberty of giving you a Short Sketch of our political Prospects, in this Quarter, on the great Question of the Constitution. My Information is from Colo. Laurence, who left Pokepsie on Saturday.

A Considerable Majority of the Convention are undoubtedly Anti-federal; or in other Words, wish for Amendments previous to the Adoption of the Government. A few of the Leaders (amongst which I think I may without Scruple class the Governor) would, if they could find Support, go further; and hazard Every thing rather than agree to any System which tended to a Consolidation of our Government. Of this however I have at present no Apprehensions; many of their Party having avowed themselves, Frends to the Union. With Respect to Amendments, as far as I can understand, the Party in Opposition, cannot agree amongst themselves. It is therefore possible that this Circumstance may create a Division in favor of the Fœderalists. As to the Rejection of the Constitution, there is not the least Probability of it. The great Points of Discussion, will probably be; whether they will adjourn without coming to any Decision; whether they will adopt it conditionally; or whether they will follow the Example of Massachusets & S Carolina.
The Conduct of your Convention will influence in a very great Degree ours; if you adjourn without doing any thing, we shall do the same—but if you do not, there is still some Prospect that we may adopt with proposed Amendments; for as to the second Point, the Inconsistency of it will I think be too apparent, after a Discussion, to command a majority. Whilst I am writing a Gentleman has fav[o]red me with a Copy of a Letter from an Intelligent Bystander, who has attended the Debates of our Convention. I therefore enclose it as a more faithful History than I can give. Mr Hopkins will do me the favor of delivering this. I am, with sentiments of the most perfect Esteem, Your Obedt Hble. Servt.
Wm. Duer


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

My dear Sir,Mount Vernon June 23d. 1788.
Since my last, acknowledging the first letter you did me the favor to write to me after your arrival in Richmond, I have received your subsequent ones of the 13th & 18th instant; which, tho’ less favourable than the former, are more pleasing than suspence.
I will yet hope that the good sense of this Country, maugre all the arts of opposition, will ultimately decide right on the important question now depending before the Convention.
I hear with real concern of your indisposition. At Fredericksburgh (on a visit to my aged and infirm mother) I understood that you intended to proceed immediately from Richmond to New York, when the Convention shall have arisen. Relaxation must have become indispensably necessary for your health, and for that reason I presume to advise you to take a little respite from business and to express a wish that part of the time might be spent under this Roof on your Journey thither. Moderate exercise, and books occasionally, with the mind unbent, will be your best restoratives. With much truth I can assure you that no one will be happier in your company than your sincere & Affecte. Servt
Go: Washington


Title: From James Madison to Ambrose Madison, 24 June 1788
From: Madison, James
To: Madison, Ambrose

Dear bror.Richmd. June 24. [1788]
Yesterday carried us through the discussion of the Constitution by paragraphs. Today will probably bring forward some proposition and debates relative to the final step to be taken. The opposing party will contend for previous amendments. On the other side a conciliatory declaration of certain fundamental principles in favor of liberty, in a form not affecting the validity & plenitude of the ratification, will be proposed. The final question is likely to be decided by a very small majority. I do not know that either party despairs absolutely. The friends of the Government seem to be in the best spirits; and I hope have the best reason to be so. At the same time it is not impossible they may miscalculate their number; and that accidents may reduce it below the requisite amount. Two members on that side, who went away with a purpose of returning are still absent, it is said: and a third is so ill as to render his vote somewhat precarious. It may well be questioned whether on every estimate this loss if it shd. continue may not endanger the result. Yours affecly.
Js. Madison Jr


Title: To James Madison from Philip Schuyler, 24 June 1788
From: Schuyler, Philip
To: Madison, James

Dear SirPoughkeepie June 24th. 1788
This moment an express is arrived from New Hampshire, conveying the happy intelligence contained in a letter, of which you have a copy at bottom of this. Colonel Hamilton is in convention, and has requested me to forward this advice to you.
Unless the adoption [by] New Hampshire should alarm the fears of those in opposition in the convention here, they will I apprehend persevere in the intention which they have decidely [sic] evinced of adoption predicated on previous Amendments, and those such as would r[e]nder the new Government very little, If any more energetic than the present.
If the convention should rise, before the Stage, which is now here, leaves this, Colo Hamilton will probably write you by that Conveyance; Your letter of the 13th Arrived last Evening. I am Sir with Great Esteem Your most Obedt Servant
Ph: Schuyler