James Madison to N. P. Trist (December 1831)

Decr. 1831.

I return with my thanks the printed speech of Col. Hayne on the 4th. of July last. It is blotted with many strange errors, some of a kind not to have been looked for from a mind like that of the author. . . .

But I find that by a sweeping charge, my inconsistency is extended to "my opinions on almost every important question which has divided the public into parties". In supporting this charge, an appeal is made to "Yates' secret Debates in the Federal Convention of 1787", as proving that I originally entertained opinions adverse to the Rights of the States; and to the writings of Col. Taylor of Caroline, as proving that I was in that convention, "an advocate for a consolidated national Government.

Of the Debates, it is certain that they abound in errors, some of them very material in relation to myself. Of the passages quoted, it may be remarked that they do not warrant the inference drawn from them. They import "that I was disposed to give Congress a power to repeal State laws", and "that the States ought to be placed under the controul of the Genl. Government, at least as much as they were formerly when under the British King & Parliament".

The obvious necessity of a controul on the laws of the States, so far as they might violate the Constn. & laws of the U. S. left no option but as to the mode. The modes presenting themselves, were 1. a Veto on the passage of the State laws. 2. a Congressional repeal of them, 3 a Judicial annulment of them. The first tho extensively favord, at the outset, was found on discussion, liable to insuperable objections, arising from the extent of Country, and the multiplicity of State laws. The second was not free from such as gave a preference to the third as now provided by the Constitution. The opinion that the States ought to be placed not less under the Govt. of the U. S. than they were under that of G. B, can provoke no censure from those who approve the Constitution as it stands with powers exceeding those ever allowed by the Colonies to G. B., particularly the vital power of taxation, which is so indefinitely vested in Congs. and to the claim of which by G. B. a bloody war, and final separation was preferred.

The author of the "Secret Debates", tho highly respectable in his general character, was the representative of the portion of the State of New York, which was strenuously opposed to the object of the Convention, and was himself a zealous partizan. His notes carry on their face proofs that they were taken in a very desultory manner, by which parts of sentences explaining or qualifying other parts, might often escape the ear. He left the Convention also on the 5th. of July before it had reached the midway of its Session, and before the opinions of the members were fully developed into their matured & practical shapes. Nor did he conceal the feelings of discontent & disgust, which he carried away with him. These considerations may account for errors; some of which are self-condemned. Who can believe that so crude and untenable a statement could have been intentionally made on the floor of the Convention as "that the several States were political Societies, varying from the lowest Corporations, to the highest sovereigns" or "that the States had vested all the essential rights of Government in the old Congress."

On recurring to the writings of Col. Taylor,1 it will be seen that he founds his imputation agst. myself and Govr. Randolph, of favoring a Consolidated National Governt on the Resolutions introduced into the Convention by the latter, in behalf of the Virga. Delegates, from a consultation among whom they were the result. The Resolutions imported that a Govt. consisting of a National Legislre. Executive & Judiciary, ought to be substituted for the Existing Congs. Assuming for the term National a meaning coextensive with a Single Consolidated Govt. he filled a number of pages, in deriving from that source, a support of his imputation. The whole course of proceedings on those Resolutions ought to have satisfied him that the term National as contradistinguished from Federal, was not meant to express more than that the powers to be vested in the new Govt. were to operate as in a Natl. Govt. directly on the people, & not as in the Old Confedcy. on the States only. The extent of the powers to be vested, also tho' expressed in loose terms, evidently had reference to limitations & definitions, to be made in the progress of the work, distinguishing it from a plenary & Consolidated Govt.

It ought to have occurred that the Govt. of the U. S being a novelty & a compound, had no technical terms or phrases appropriate to it; and that old terms were to be used in new senses, explained by the context or by the facts of the case.

Some exulting inferences have been drawn from the change noted in the Journal of the Convention, of the word National into "United States." The change may be accounted for by a desire to avoid a misconception of the former, the latter being preferred as a familiar caption. That the change could have no effect on the real character of the Govt. was & is obvious; this being necessarily deduced from the actual structure of the Govt. and the quantum of its powers. . . .

Another error has been in ascribing to the intention of the Convention which formed the Constitution, an undue ascendency in expounding it. Apart from the difficulty of verifying that intention it is clear, that if the meaning of the Constitution is to be sought out of itself, it is not in the proceedings of the Body that proposed it, but in those of the State Conventions which gave it all the validity & authority it possesses.

[Footnotes as included or written by Farrand]