Title: The Federalist Number 38, [12 January] 1788
From: Madison, James
To:

[12 January 1788]
It is not a little remarkable that in every case reported by antient history, in which government has been established with deliberation and consent, the task of framing it has not been committed to an assembly of men; but has been performed by some individual citizen of pre-eminent wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete; as Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The foundation of the original government of Rome was laid by Romulus; and the work compleated by two of his elective successors, Numa, and Tullus Hostilius. On the abolition of royalty, the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which he alledged had been prepared by Servius Tullius, and to which his address obtained the assent and ratification of the senate and people. This remark is applicable to confederate governments also. Amphyction, we are told, was the author of that which bore his name. The Achæan league received its first birth from Achæus, and its second from Aratus. What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be cloathed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular. Draco appears to have been entrusted by the people of Athens, with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled by the universal suffrage of his fellow citizens, to take upon him the sole and absolute power of new modelling the constitution. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution, by the intervention of a deliberative body of citizens. Whence could it have proceeded that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution, as to place their destiny in the hands of a single citizen? Whence could it have proceeded that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered without supposing that the fears of discord and disunion among a number of counsellors, exceeded the apprehension of treachery or incapacity in a single individual. History informs us likewise of the difficulties with which these celebrated reformers had to contend; as well as of the expedients which they were obliged to employ, in order to carry their reforms into effect. Solon, who seems to have indulged a more temporising policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition; and of securing his final success, by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government; they serve not less on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
Is it an unreasonable conjecture that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and consequently such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable not only by many considerations of a general nature, but by the particular case of the articles of confederation. It is observable that among the numerous objections and amendments suggested by the several states, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error, which on actual trial has discovered itself. And if we except the observations which New-Jersey was led to make rather by her local situation than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason nevertheless to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility in some states, had not a zeal for their opinions and supposed interests, been stifled by the more powerful sentiment of self-preservation. One state, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts.
A patient who finds his disorder daily growing worse; and that an efficacious remedy can no longer be delayed without extreme danger; after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend: The case of the patient is carefully examined: a consultation is held. They are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy by which this happy effect is to be produced. The prescription is no sooner made known however, than a number of persons interpose, and without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him under pain of certain death to make use of it. Might not the patient reasonably demand before he ventured to follow this advice, that the authors of it should at least agree among themselves, on some other remedy to be substituted? And if he found them differing as much from one another, as from his first counsellors, would he not act prudently, in trying the experiment unanimously recommended by the latter, rather than in hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient, and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice, under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed constitution ought to be rejected, because it is not a confederation of the states, but a government over individuals. Another admits that it ought to be a government over individuals, to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory not of the personal rights of individuals, but of the rights reserved to the states in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable, but for the fatal power of regulating the times and places of election. An objector in a large state exclaims loudly against the unreasonable equality of representation in the senate. An objector in a small state is equally loud against the dangerous inequality in the house of representatives. From this quarter we are alarmed with the amazing expence from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is, that the congress will be but the shadow of a representation, and that the government would be far less objectionable, if the number and the expence were doubled. A patriot in a state that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a state of great exports and imports, is not less dissatisfied that the whole burthen of taxes may be thrown on consumption. This politician discovers in the constitution a direct and irresistible tendency to monarchy. That is equally sure, it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them. Whilst a fourth is not wanting, who with no less confidence affirms that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the constitution, the language is that the legislative, executive and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government, and all the requisite precautions in favour of liberty. Whilst this objection circulates in vague and general expressions, there are not a few who lend their sanction to it. Let each one come forward with his particular explanation and scarce any two are exactly agreed on the subject. In the eyes of one the junction of the senate with the president in the responsible function of appointing to offices, instead of vesting this executive power in the executive, alone, is the vicious part of the organisation. To another, the exclusion of the house of representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the president into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement according to some is more admissible than the trial of impeachments by the senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. We concur fully, reply others, in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organisation arises from the extensive powers already lodged in that department. Even among the zealous patrons of a council of state, the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted. The demand of one gentleman is that the council should consist of a small number, to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the president himself.
As it can give no umbrage to the writers against the plan of the federal constitution, let us suppose that as they are the most zealous, so they are also the most sagacious of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur both in this favourable opinion of their merits, and in their unfavourable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it requires some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether with all their enmity to their predecessors, they would in any one point depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a better, but until another should be agreed upon by this new assembly of lawgivers.
It is a matter both of wonder and regret, that those who raise so many objections against the new constitution, should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation, for a firm and commodious building, because the latter had not a porch to it; or because some of the rooms might be a little larger or smaller, or the ceiling a little higher or lower than his fancy would have planned them. But waving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system, lie with tenfold weight against the existing confederation? Is an indefinite power to raise money dangerous in the hands of a federal government? The present congress can make requisitions to any amount they please; and the states are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The confederation gives to congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depository of all the federal powers. Is it particularly dangerous to give the keys of the treasury, and the command of the army, into the same hands? The confederation places them both in the hands of congress. Is a bill of rights essential to liberty? The confederation has no bill of rights. Is it an objection against the new constitution, that it empowers the senate with the concurrence of the executive to make treaties which are to be the laws of the land? The existing congress, without any such controul, can make treaties which they themselves have declared, and most of the states have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new constitution for twenty years? By the old, it is permitted for ever.
I shall be told that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of congress on the states for the means of carrying them into practice: That however large the mass of powers may be, it is in fact a lifeless mass. Then say I in the first place, that the confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory: And in the next place, that if the union is to continue, and no better government be substituted, effective powers must either be granted to or assumed by the existing congress, in either of which events the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the union. It is now no longer a point of speculation and hope that the western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expences, yet must it hereafter be able under proper management both to effect a gradual discharge of the domestic debt, and to furnish for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual states; and it may with reason be expected, that the remaining states will not persist in withholding similar proofs of their equity and generosity. We may calculate therefore that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more, they have proceeded to form new states; to erect temporary governments; to appoint officers for them; and to prescribe the conditions on which such states shall be admitted into the confederacy. All this has been done; and done without the least colour of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A great and independent fund of revenue is passing into the hands of a single body of men, who can raise troops to an indefinite number, and appropriate money to their support for an indefinite period of time. And yet there are men who have not only been silent spectators of this prospect; but who are advocates for the system which exhibits it; and at the same time urge against the new system the objections which we have heard. Would they not act with more consistency in urging the establishment of the latter, as no less necessary to guard the union against the future powers and resources of a body constructed like the existing congress, than to save it from the dangers threatened by the present impotency of that assembly?
I mean not by any thing here said to throw censure on the measures which have been pursued by congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
Publius.


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

Dear Sir
N. York Jany. 14. 1788.
The Daily Advertizer of this date contains several important articles of information, which need only be referred to. I inclose it with a few other late papers. Neither French nor English packet is yet arrived; and the present weather would prevent their getting in if they should be on the Coast. I have heard nothing of Consequence from Massachussetts since my last. The accounts from New Hampshire continue to be as favorable as could be wished. From South Carolina we get no material information. A letter from Georgia, of the 25. of Decr. says that the Convention was getting together at Augusta and that every thing wore a fœderal complexion. N. Carolina it seems, has been so complaisant to Virginia as to postpone her Convention till July. We are still without a Congress. With perfect esteem & attachment I remain Dear Sir Your Obedt. humble servt.
Js. Madison Jr


Title: To James Madison from Henry Lee, 14 January 1788
From: Lee, Henry
To: Madison, James

dear Madison,
Stratford. Jany 14t. 88
To aid Mr. Twining I put my name on his bill & procured the endorsement of Mr. Constable to authenticate it in N York. Mr. Twinings bill is not paid by the Postmaster General who gave me his written assurance that it should be paid when due on condition that the contract was performed relating to the mail. This letr. Mr. Constable has & you can see. I am called on for the money & without the assistance of my friends may loose the whole. Will you exert your self for me & if possible releive me, advise with Col. Hamilton who will I am sure heartily support me. Let me have your answer without loss of time. Yours truely
H: L


Title: To James Madison from Archibald Stuart, 14 January 1788
From: Stuart, Archibald
To: Madison, James

Dr Sir
Richmond Jany. 14th 1788
The uncertainty of our final Decision on all publick questions has been the cause of My late silence. As the Session is now over I can venture to give you some information with certainty—for this purpose I inclose you two Acts with a Statement of Our private Debts. The Law concerning Executions is the Companion of the District Bill which passed by a Very Large Majority—four additional Genl. Court Judges are chosen for the purpose of alloting at least three Judges to each Circuit. The Gent in nomination for this appointment were Jos. Prentis, St Geo Tucker, Gabl. Jones, Colo. Parker of Westmoreland, Jos: Jones of K George, Edmund Winstone, Lee Massy, Cut. Bullitt Daniel Fisher & Colo. Grayson, Cyrus Griffin being Withdrawn Out of Whom the four first mentioned Were Elected. An Act has passed to subject the Lands of publick Debtors to discharge the Commonwealths Judgments, & to Authorize the removal of their property to any part of the State where the Executive shall Direct the Officer executing any process on such property. Several alterations have taken place in the port-Bill in favor of American Vessels & relaxing the rigor of the Law which has been so loudly complained of. I fear we have made it worse & that every Departure from its first principles will be found ruinous.
The anti-constitutional Fever which raged here some time ago begins to abate & I am not without hopes that many patients will be restored to their senses. Mr. Page of Rosewell has become a Convert. Genl. Nelson begins to view the Govt with a More favorable eye & I am told St. G: Tucker has confessed his sins.
Publius is in general estimation, his greatness is acknowledged universally. Colo. Carrington has sent me his numbers as late down as the 24th. inclusive Which Dixon has been printing for some time past. Should he leave New York I must rely upon Yourself & Mr. Brown to transmit the remainder of them as they shall appear. They May be Directed to Me or in my Absence to Mr. John Dixon—as I leave this place tomorrow not to return before the first of April.
Pray let nothing Divert you from Coming to the Convention. I am Dr Sir with respect & esteem Yr Very H sevt
Archd Stuart
I had almost forgotten to express my Wish that a Superintendant of Indian Affairs may be appointed as soon As possible, I verily believe it would essentially serve some of Our suffering Western Brethren.
Colo. Arthur Campbell has spoken to me in such terms as convince me he would be pleased with the appointment & I own that I am far from thinking him disqualifyed for it, he has resided among the Indians to the Age of 7 his situation is favorable & he is a man of Considerable Abilities. From &c
A: S:


Title: To James Madison from Tench Coxe, 16 January 1788
From: Coxe, Tench
To: Madison, James

Dear Sir
Philada. Jany 16th. 1788.
I have obtained from the Editor about sixty pages of the debates of our State Convention, wch. I am anxious to get into the hands of Mr. King, for the use of the gentlemen in the Massachussets convention. Uncertain whether he is in New York or Boston I have taken the liberty of enclosing it to you with a request that you will as early as possible have it sent forward to him under a franked cover from yourself.
I observe the letters of Publius are to be printed by Subscription at New Yk. Shall I ask the favor of your delivering the enclosed bills to the printer, and requesting him to set me down for a copy. They are most valuable disquisitions of Government in its peculiar relations and connexions with this Country.
Enclosed is a little paper the republication of wch. may possibly be useful in New York. I am, Sir, with very sincere esteem, your most respectf. h. Servt.
Tench Coxe


Title: To James Madison from Rufus King, 16 January 1788
From: King, Rufus
To: Madison, James

dear Sir
Boston 16. Jany. 1788
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 wd. ratify, each [member] shd. be at liberty [to disc]uss 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 shd. 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 their Opponents and the resolution was agreed to, & Mr. Gerry has taken his Seat.
Tomorrow we are told certain Enquiries are to be moved for by the Opposition, & 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 favor of the Constitution every reasonable explanation will be given, and arguments really new and in my Judgment most excellent have been & 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. Farewel, your’s &c
Rufus King


Title: The Federalist Number 39, [16 January] 1788
From: Madison, James
To:

[16 January 1788]
The last paper having concluded the observations which were meant to introduce a candid survey of the plan of government reported by the convention, we now proceed to the execution of that part of our undertaking. The first question that offers itself is, whether the general form and aspect of the government be strictly republican? It is evident that no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or with that honorable determination, which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention therefore be found to depart from the republican character, its advocates must abandon it as no longer defensible.
What then are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitutions of different states, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people, is exercised in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with a hereditary aristocracy and monarchy, has with equal impropriety been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, shew the extreme inaccuracy with which the term has been used in political disquisitions.
If we resort for a criterion, to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour. It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organised or well executed, would be degraded from the republican character. According to the constitution of every state in the union, some or other of the officers of government are appointed indirectly only by the people. According to most of them the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the co-ordinate branches of the legislature. According to all the constitutions also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behaviour.
On comparing the constitution planned by the convention, with the standard here fixed, we perceive at once that it is in the most rigid sense conformable to it. The house of representatives, like that of one branch at least of all the state legislatures, is elected immediately by the great body of the people. The senate, like the present congress, and the senate of Maryland, derives its appointment indirectly from the people. The president is indirectly derived from the choice of the people, according to the example in most of the states. Even the judges, with all other officers of the union, will, as in the several states, be the choice, though a remote choice, of the people themselves. The duration of the appointments is equally conformable to the republican standard, and to the model of the state constitutions. The house of representatives is periodically elective as in all the states; and for the period of two years as in the state of South Carolina. The senate is elective for the period of six years; which is but one year more than the period of the senate of Maryland; and but two more than that of the senates of New-York and Virginia. The president is to continue in office for the period of four years; as in New-York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other states the election is annual. In several of the states however, no explicit provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia, he is not impeachable till out of office. The president of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behaviour. The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the state constitutions.
Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments; and in its express guarantee of the republican form to each of the latter.
But it was not sufficient, say the adversaries of the proposed constitution, for the convention to adhere to the republican form. They ought with equal care, to have preserved the federal form, which regards the union as a confederacy of sovereign states; instead of which, they have framed a national government, which regards the union as a consolidation of the states. And it is asked by what authority this bold and radical innovation was undertaken. The handle which has been made of this objection requires, that it should be examined with some precision.
Without enquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first to ascertain the real character of the government in question; secondly, to enquire how far the convention were authorised to propose such a government; and thirdly, how far the duty they owed to their country, could supply any defect of regular authority.
First. In order to ascertain the real character of the government it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
On examining the first relation, it appears on one hand that the constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but on the other that this assent and ratification is to be given by the people, not as individuals composing one entire nation; but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states derived from the supreme authority in each state, the authority of the people themselves. The act therefore establishing the constitution, will not be a national but a federal act.
That it will be a federal and not a national act, as these terms are understood by the objectors, the act of the people as forming so many independent states, not as forming one aggregate nation is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the union, nor from that of a majority of the states. It must result from the unanimous assent of the several states that are parties to it, differing no other wise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States, would bind the minority; in the same manner as the majority in each state must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes; or by considering the will of the majority of the states, as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each state in ratifying the constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation then the new constitution will, if established, be a federal and not a national constitution.
The next relation is to the sources from which the ordinary powers of government are to be derived. The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state. So far the government is national not federal. The senate on the other hand will derive its powers from the states, as political and co-equal societies; and these will be represented on the principle of equality in the senate, as they now are in the existing congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the president is to be made by the states in their political characters. The votes allotted to them, are in a compound ratio, which considers them partly as distinct and co-equal societies; partly as unequal members of the same society. The eventual election, again is to be made by that branch of the legislature which consists of the national representatives; but in this particular act, they are to be thrown into the form of individual delegations from so many distinct and co-equal bodies politic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.
The difference between a federal and national government, as it relates to the operation of the government, is, by the adversaries of the plan of the convention, supposed to consist in this, that in the former, the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the constitution by this criterion, it falls under the national, not the federal character; though perhaps not so compleatly as has been understood. In several cases, and particularly in the trial of controversies to which states may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the government on the people in their individual capacities, in its ordinary and most essential proceedings, will on the whole, in the sense of its opponents, designate it in this relation, a national government.
But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere. In this relation then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.
If we try the constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly national, nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal on the other hand, the concurrence of each state in the union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention, is not founded on either of these principles. In requiring more than a majority, and particularly, in computing the proportion by states, not by citizens, it departs from the national, and advances towards the federal character: In rendering the concurrence of less than the whole number of states sufficient, it loses again the federal, and partakes of the national character.
The proposed constitution therefore, even when tested by the rules laid down by its antagonists, is in strictness, neither a national nor a federal constitution; but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal, and partly national; in the operation of these powers, it is national, not federal; in the extent of them again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.
Publius.


Title: The Federalist Number 41, [19 January] 1788
From: Madison, James
To:

[19 January 1788]
The constitution proposed by the convention may be considered under two general points of view. The first relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the states. The second, to the particular structure of the government, and the distribution of this power, among its several branches.
Under the first view of the subject two important questions arise; 1. Whether any part of the powers transferred to the general government be unnecessary or improper? 2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several states?

Is the aggregate power of the general government greater than ought to have been vested in it? This is the first question.
It cannot have escaped those who have attended with candour to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking. But cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see therefore that in all cases, where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.
That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the union; and that this may be the more conveniently done, they may be reduced into different classes as they relate to the following different objects; 1. Security against foreign danger; 2. Regulation of the intercourse with foreign nations; 3. Maintenance of harmony and proper intercourse among the states; 4. Certain miscellaneous objects of general utility; 5. Restraint of the states from certain injurious acts; 6. Provisions for giving due efficacy to all these powers.
The powers falling within the first class, are those of declaring war, and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.
Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American union. The powers requisite for attaining it, must be effectually confided to the federal councils.
Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous therefore to enter into a proof of the affirmative. The existing confederation establishes this power in the most ample form.

Is the power of raising armies, and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defence.
But was it necessary to give an indefinite power of raising troops, as well as providing fleets; and of maintaining both in peace, as well as in war?
The answer to these questions has been too far anticipated, in another place, to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what colour of propriety could the force necessary for defence, be limited by those who cannot limit the force of offence? If a federal constitution could chain the ambition, or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.
How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions. If one nation maintains constantly a disciplined army ready for the service of ambition or revenge, it obliges the most pacific nations, who may be within the reach of its enterprises, to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishment, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valour of all other nations, and rendered her mistress of the world.
Not less true is it, that the liberties of Rome proved the final victim to her military triumphs, and that the liberties of Europe, as far as they ever existed, have, with few exceptions been the price of her military establishments. A standing force therefore is a dangerous, at the same time that it may be a necessary provision. On the smallest scale it has its inconveniences. On an extensive scale, its consequences may be fatal. On any scale, it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.
The clearest marks of this prudence are stamped on the proposed constitution. The union itself which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America, united with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition, than America disunited, with an hundred thousand veterans ready for combat. It was remarked on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources, impregnable to the armies of her neighbours, the rulers of Great-Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world, gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never for a moment be forgotten, that they are indebted for this advantage to their union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker or the ambition of the stronger states or confederacies, will set the same example in the new, as Charles VII. did in the old world. The example will be followed here from the same motives which produced universal imitation there. Instead of deriving from our situation the precious advantage which Great-Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty every where crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy and revenge. In America, the miseries springing from her internal jealousies, contentions and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe. This picture of the consequences of disunion cannot be too highly coloured, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the union of America, and be able to set a due value on the means of preserving it.
Next to the effectual establishment of the union, the best possible precaution against danger from standing armies, is a limitation of the term for which revenue may be appropriated to their support. This precaution the constitution has prudently added. I will not repeat here the observations, which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the constitution, which has been drawn from the policy and practice of Great-Britain. It is said that the continuance of an army in that kingdom, requires an annual vote of the legislature; whereas the American constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: But is it a just form? Is it a fair comparison? Does the British constitution restrain the parliamentary discretion to one year? Does the American impose on the congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term.
Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British constitution, has nevertheless in practice been limited by parliamentary discretion, to a single year. Now if in Great-Britain, where the house of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year; ought not suspicion herself to blush in pretending that the representatives of the United States, elected freely, by the whole body of the people, every second year, cannot be safely entrusted with a discretion over such appropriations, expressly limited to the short period of two years?
A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side, the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a constitution fully adequate to the national defence, and the preservation of the union, can save America from as many standing armies as it may be split into states or confederacies; and from such a progressive augmentation of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people; as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former, and safe to the latter.
The palpable necessity of the power to provide and maintain a navy has protected that part of the constitution against a spirit of censure, which has spared few other parts. It must indeed be numbered among the greatest blessings of America, that as her union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great-Britain. The batteries most capable of repelling foreign enterprizes on our safety, are happily such as can never be turned by a perfidious government against our liberties.
The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious. If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the union ought to feel more anxiety on this subject than New-York. Her sea coast is extensive. The very important district of the state is an Island. The state itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage, for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it, be let loose on the ocean, our escape from insults and depredations, not only on that element but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the states more immediately exposed to these calamities, have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them.

The power of regulating and calling forth the militia has been already sufficiently vindicated and explained.
The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defence, is properly thrown into the same class with it. This power also has been examined already with much attention, and has I trust been clearly shewn to be necessary both in the extent and form given to it by the constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation, by which they mean taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue, that for a considerable time, it must be a principal source, that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce, must vary with the variations both in the extent and the kind of imports, and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labour, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in considerable part of raw materials which will be wrought into articles for exportation, and will therefore require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration ought to contemplate these revolutions, and be able to accommodate itself to them.
Some who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the constitution on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alledged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the congress been found in the constitution, than the general expressions just cited, the authors of the objection might have had some colour for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
But what colour can the objection have, when a specification of the objects alluded to by these general terms, immediately follows; and is not even separated by a longer pause than a semicolon. If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it; shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent and the clear and precise expressions, be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which as we are reduced to the dilemma of charging either on the authors of the objection, or on the authors of the constitution, we must take the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears, that the language used by the convention is a copy from the articles of confederation. The objects of the union among the states as described in article 3d, are, “their common defence, security of their liberties, and mutual and general welfare.” The terms of article 8th, are still more identical. “All charges of war, and all other expences, that shall be incurred for the common defence or general welfare, and allowed by the United States in congress shall be defrayed out of a common treasury, &c.” A similar language again occurs in article 9. Construe either of these articles by the rules which would justify the construction put on the new constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if attaching themselves to these general expressions, and disregarding the specifications, which ascertain and limit their import, they had exercised an unlimited power of providing for the common defence and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of congress, as they now make use of against the convention. How difficult it is for error to escape its own condemnation.
Publius.


Title: From James Madison to George Washington, 20 January 1788
From: Madison, James
To: Washington, George

Dear Sir
N. York Jany. 20. 1788.
The Count de Moustier arrived here a few days ago as Successor to the Chevr. de la Luzerne. His passage has been so tedious that I am not sure that the despatches from Mr. Jefferson make any considerable addition to former intelligence. I have not yet seen them, but am told that this is the case. In general it appears that the affairs of Holland are put into pacific train. The Prussian troops are to be withdrawn, and the event settled by negociations. But it is still possible that the war between the Russians & Turks may spread a general flame throughout Europe.
The intelligence from Massachussetts begins to be very ominous to the Constitution. The antifederal party is reinforced by the insurgents, and by the province of Mayne which apprehends greater obstacles to her scheme of a separate Government, from the new system than may be otherwise experienced. And according to the prospect at the date of the latest letters, there was very great reason to fear that the voice of that State would be in the negative. The operation of such an event on this State may easily be foreseen. Its Legislature is now sitting and is much divided. A majority of the Assembly are said to be friendly to the merits of the Constitution. A Majority of the Senators actually convened are opposed to a submission of it to a Convention. The arrival of the absent members will render the voice of that branch uncertain on the point of a Convention. The decision of Massachussetts either way will involve the result in this State. The minority in Penna. is very restless under their defeat. If they can get an Assembly to their wish they will endeavor to undermine what has been done there. If backed by Massts. they will probably be emboldened to make some more rash experiment. The information from Georgia continues to be favorable. The little we get from S. Carolina is of the same complexion.
If I am not misinformed as to the arrival of some members for Congress, a quorum is at length made up. With the most perfect esteem & attachment I remain Dear Sir Your Obedt. humble servant
Js. Madison Jr


Title: Account with the Commonwealth of Virginia, [20 January] 1788
From: Madison, James
To:

[20 January 1788]

1787.
The Commonwealth of Virginia to James Madison Junr. Debr.

To attendance as a member of Congress from Octr. 20 to Jany. 20. being 92 days at 6 dollars per day
}
£165..12

Credt.

By surplus advanced by the hands of Govenr. Randolph

 £14.

Balance
£151..12

E. Exd.   Js. Madison Jr


Title: To James Madison from Rufus King, 20 January 1788
From: King, Rufus
To: Madison, James

Dear Sir
Boston 20 Jan 1788.
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. G. 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 in 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. shd. 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, & 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. With real Esteem & Regard I am &c
R. King


Title: From James Madison to Tench Coxe, 20 January 1788
From: Madison, James
To: Coxe, Tench

20 January 1788. Mentioned in Coxe to JM, 23 and 27 Jan. 1788. Reports unfavorable prospects for the Constitution in Massachusetts.


Title: To James Madison from Joseph Jones, 21 January 1788
From: Jones, Joseph
To: Madison, James

Dr. Sr.
Spring Hill 21st Janry. 1788.
I beg your pardon for omiting to write to you the last two or three weeks. I have been little in Richmond during that period and of late have been confined by an attack of the Rhumatism, which, though very painfull for two or three days, has now left me. I mean, nothing unforeseen preventing, to visit Richmond next week. Before I came away Col. Goode had sent me a good many slips of the wild crab tree but not one scion— these I knew wod. not answer your purpose and threw them away. He informed me there was not a scion to be got. Mr. Seldon could not discover any of the Trees at his place. The scion I suspect is not easily procured unless from Trees that can be found under inclosure. The season being now past for sending them to N. York in time for planting could they be procured, you must desire your friend to have patience untill next fall, by which time I doubt not to be able to gratify him. I think I have seen several of them near where Col. Carter resides. The tree at Col. Goodes bears the largest apple for a wild crab I ever saw. The Servant brought me one of them with the slips as large as a hens egg, and of very agreeable scent. The Map of James River was compleated when I left Richmond except the trace of the canal which being a material part of it more on account of the notes of reference that any difficulty in laying it down I declined receiving it from Mr. Lambert untill these were added. Mr. Harris the manager of the work altho’ he had promised me to furnish them had not then complied with his promise. Lambert promised me if he did not soon do it he would ride up to his House near the Canal and obtain his sketch and notes. Would you have the map forwarded to new york by some safe ha[n]d that offers or retain it here untill you come in in march which I hear you intend doing. It will be too large for a letter by Post.
The Assembly have passed the district plan into a law—much changed I am told from the former plan. Not having seen the law I can speak only from information. There are eighteen districts—four additional Judges of the genl. Court—the genl. Court Judges ride the upper districts three to a circuit. The Chancellors and Admiralty Judges take the six lower districts. Chancery, admiralty, and appeal Courts as heretofore. District Courts take cognizance of no demands under 30 £. Civil process commences 1st Janry. next the criminal I am informed some time in the fall. The Judges have 20/ each a day, & 5d ⅌ mile during their Journeys I think in addition to former allowance, so it stood in the bill and is so I presume in the law. The lawyers fees 15/ & 30 the same as the County Courts. The revenue law which is also the appropriation law is calculated to lessen all it may the State debt, I mean the internal debt. The certificate Tax is taken off and an additional duty on certain enumerated articles & 3 ⅌ Cent on other goods payable in certificates is the present plan for sinking them. Yr. friend & Servt
Jos: Jones.


Title: The Federalist Number 42, [22 January 1788]
From: Madison, James
To:

[22 January 1788]
The second class of powers lodged in the general government, consists of those which regulate the intercourse with foreign nations, to wit, to make treaties; to send and receive ambassadors, other public ministers and consuls; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to regulate foreign commerce, including a power to prohibit after the year 1808, the importation of slaves, and to lay an intermediate duty of ten dollars per head, as a discouragement to such importations.
This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations.
The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of confederation; with this difference only, that the former is disembarrassed by the plan of the convention of an exception, under which treaties might be substantially frustrated by regulations of the states; and that a power of appointing and receiving “other public ministers and consuls,” is expressly and very properly added to the former provision concerning ambassadors. The term ambassador, if taken strictly, as seems to be required by the second of the articles of confederation, comprehends the highest grade only of public ministers; and excludes the grades which the United States will be most likely to prefer where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of congress to employ the inferior grades of public ministers; and to send and receive consuls. It is true that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries, may perhaps be covered under the authority given by the 9th article of the confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been no where provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which congress have been betrayed, or forced by the defects of the confederation into violations of their chartered authorities, would not a little suprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old.
The power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, belongs with equal propriety to the general government; and is a still greater improvement on the articles of confederation.
These articles contain no provision for the case of offences against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the confederacy with foreign nations.
The provision of the federal articles on the subject of piracies and felonies, extends no farther than to the establishment of courts for the trial of these offences. The definition of piracies might perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of loose signification even in the common law of England; and of various import in the statute law of that kingdom. But neither the common, nor the statute law of that or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term as defined in the codes of the several states, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the states; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity therefore, the power of defining felonies in this case, was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration.

It were doubtless to be wished that the power of prohibiting the importation of slaves, had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate for ever within these states, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period it will receive a considerable discouragement from the federal government, and may be totally abolished by a concurrence of the few states which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them, of being redeemed from the oppressions of their European brethren!
Attempts have been made to pervert this clause into an objection against the constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another, as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none; but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.
The powers included in the third class, are those which provide for the harmony and proper intercourse among the states.
Under this head might be included the particular restraints imposed on the authority of the states, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit, to regulate commerce among the several states and the Indian tribes; to coin money, regulate the value thereof and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish an uniform rule of naturalization, and uniform laws of bankruptcy; to prescribe the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, and to establish post-offices and post-roads.
The defect of power in the existing confederacy, to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incomplete, and ineffectual. A very material object of this power was the relief of the states which import and export through other states, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former: We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility. To those who do not view the question through the medium of passion or of interest, the desire of the commercial states to collect in any form, an indirect revenue from their uncommercial neighbours, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned before public bodies as well as individuals, by the clamours of an impatient avidity for immediate and immoderate gain.
The necessity of a superintending authority over the reciprocal trade of confederated states has been illustrated by other examples as well as our own. In Switzerland, where the union is so very slight, each canton is obliged to allow to merchandizes, a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet; though it appears from a quotation in an antecedent paper, that the practice in this as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the union of the Netherlands, on its members, one is, that they shall not establish imposts disadvantageous to their neighbours, without the general permission.
The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the states, and is not to violate or infringe the legislative right of any state within its own limits. What description of Indians are to be deemed members of a state, is not yet settled; and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of confederation have inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.
All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is that by providing for this last case, the constitution has supplied a material omission in the articles of confederation. The authority of the existing congress is restrained to the regulation of coin struck by their own authority, or that of the respective states. It must be seen at once, that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different states.
The punishment of counterfeiting the public securities as well as of the current coin, is submitted of course to that authority, which is to secure the value of both.
The regulation of weights and measures is transferred from the articles of confederation, and is founded on like considerations with the preceding power of regulating coin.
The dissimilarity in the rules of naturalization, has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the 4th article of the confederation, it is declared “that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens, in the several states, and the people of each state, shall in every other, enjoy all the privileges of trade and commerce, &c.” There is a confusion of language here, which is remarkable. Why the terms free inhabitants, are used in one part of the article; free citizens in another, and people in another, or what was meant by superadding “to all privileges and immunities of free citizens,”—“all the privileges of trade and commerce,” cannot easily be determined. It seems to be a construction scarcely avoidable, however that those who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled in every other state to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state; so that it may be in the power of a particular state, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself; but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each state, of naturalizing aliens in every other state. In one state residence for a short term confers all the rights of citizenship. In another qualifications of greater importance are required. An alien therefore legally incapacitated for certain rights in the latter, may by previous residence only in the former elude his incapacity; and thus the law of one state, be preposterously rendered paramount to the law of another within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several states, certain descriptions of aliens who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another state, and then asserted their rights as such, both to residence and citizenship within the state proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new constitution has accordingly with great propriety made provision against them, and all others proceeding from the defect of the confederation, on this head by authorising the general government to establish an uniform rule of naturalization throughout the United States.
The power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different states, that the expediency of it seems not likely to be drawn into question.
The power of prescribing by general laws the manner in which the public acts, records and judicial proceedings of each state shall be proved, and the effect they shall have in other states, is an evident and valuable improvement on the clause relating to this subject in the articles of confederation. The meaning of the latter is extremely indeterminate; and can be of little importance under any interpretation which it will bear. The power here established, may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous states, where the effects liable to justice, may be suddenly and secretly translated in any stage of the process, within a foreign jurisdiction.
The power of establishing post-roads, must in every view be a harmless power; and may perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the states, can be deemed unworthy of the public care.
Publius.


Title: From James Madison to Rufus King, 23 January 1788
From: Madison, James
To: King, Rufus

Dear Sir
N. York Jany. 23 [1788]—½ after 8 OC.
I have this instant recd. your favr. of the 16. and have but a few moments to thank you for it. I have also just recd. a letter from Genl. Washington. It contains nothing very material or new. The Genl. thinks that although there is an uncertainty in the case, the final decision will prove that a large majority in Virga. are in favor of the Constitution. If nine States should precede it seems now to be admitted on all hands that Virga. will accede. Every post confirms the opinion that the Constn. is regaining its lost ground. It is impossible to express how much depends on the result of the deliberations of your Body. The arrival of the French Minister here must have got to Boston through the Gazettes. He has been too long on the way to add much to former intelligence. It seems still possible that war may take place; though the embers are stifled for the moment. A Congs. was made for the first time on Monday, & Mr. C. Griffin has been placed in the chair. Adieu. Yrs. sincerely
Js. Madison Jr


Title: To James Madison from Tench Coxe, 23 January 1788
From: Coxe, Tench
To: Madison, James

Dear Sir
Philada Jany 23d. 1788.
I am truely sorry that appearances are not more promising in Massachussets than I learn from your letter of 20th instant. The pamphlet may be of signal service as things unhappily are so circumstanced & I rejoice in having sent it. I hope the movements of the tradesmen will have an influence on a principal Character. The peculiar situation of Maine is unfortunate. The greatest difficulty will arise, I fear, from circumstances wch. like this have Nothing to connect them with the constitution as matters of government.
I believe there is a real Change working in Virginia. Mr. Contee of Maryland, now at New York, mentioned some Circumstances with regard to Mr. R. H. Lee that may be worth your possessing yourself of for the information of Mr. King. I am unacquainted with Mr. Contee but I am told he spoke of several things which promise a Change of Conduct, tho perhaps not of Opinion on the part of Mr. Lee. I am informed also that Col. Grierson has written in these terms “that the game is up for George has been undoing all that they have done.[”] The person who mentioned this to Me told Me he had seen the letter. Connecticut I hope will have influence every where especially in New York & Massachussets.
I observe Consolidation is the great Object of Apprehension in New York. The same thing, the benefits of State sovereignty, is the difficulty in my opinion most generally prevailing. It does all the Mischief in Pennsylvania. I have therefore thought a few well-tempered papers on this point might be useful & have commenced them under the signature of the freeman in this days Gazettee, of wch. I send you a copy. It is incorrectly printed & hastily written for at this time I happen to be very much engaged. I wish I had time and more talents for the duty. I trust however some good may happen from them & little harm. Should they be of any use in New York or Massachussets it may be well to republish them there. I am with great truth, Sir, your most respectf. h. Servant
Tench Coxe
I add a second copy of the freeman, one of wch. perhaps it may be useful to send for republication to Mr. King.


Title: To James Madison from Rufus King, 23 January 1788
From: King, Rufus
To: Madison, James

Dear Sir
Boston 23. Jan. 1788
Our prospects are gloomy, but hope is not entirely extinguished. Gerry has not returned to the Convention, & I think will not again be invited. We are now thinking of amendments to be submitted not as a condition of our assent & Ratification; but as the opinion of the Convention subjoined to their Ratification. This scheme may gain a few members, but the issue is doubtful. Farewel
R King