James Madison letter to George Washington, 16 April 1787

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New York, April 16th, 1787.

DEAR SIR, I have been honored with your letter of the 31 March, and find, with much pleasure, that your views of the reform which ought to be pursued by the Convention give a sanction to those I entertained. Temporising applications will dishonor the councils which propose them, and may foment the internal malignity of the disease, at the same time that they produce an ostensible palliation of it. Radical attempts, although unsuccessful, will at least justify the authors of them.

Having been lately led to revolve the subject which is to undergo the discussion of the Convention, and formed some outlines of a new system, I take the liberty of submitting them without apology to your eye.

Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty, and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.

I would propose as the groundwork, that a change be made in the principle of representation. According to the present form of the Union, in which the intervention of the States is in all great cases necessary to effectuate the measures of Congress, an equality of suffrage does not destroy the inequality of importance in the several members. No one will deny that Virginia and Massachusetts have more weight and influence, both within and without Congress, than Delaware or Rhode Island. Under a system which would operate in many essential points without the intervention of the State legislatures, the case would be materially altered. A vote in the national Councils from Delaware would then have the same effect and value as one from the largest State in the Union. I am ready to believe that such a change would not be attended with much difficulty. A*' majority of the States, and those of greatest influence, will regard it as favorable to them. To the northern States it will be recommended by their present populousness; to the Southern, by their expected advantage in this respect. The lesserv. States must in every event yield to the predominant will. But the consideration which particularly urges a change in the representation is, that it will obviate the principal objections of the larger States to the necessary concessions of power.

I would propose next, that in addition to the present federal powers, the national Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, &c., &c.

Over and above this positive power, a negative in all cases whatsoever on the Legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded or defeated. The States will continue to invade the National jurisdiction, to violate treaties and the law of nations, and to harass each other with rival and spiteful measures dictated by mistaken views of interest. Another happy effect of this prerogative would be its controul on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals. The great desideratum, which has not yet been found for Republican Governments, seems to be some disinterested and dispassionate umpire in disputes between different passions and interests in the State. The majority, who alone have the right of decision, have frequently an interest, real or supposed, in abusing it. In Monarchies, the Sovereign is more neutral to the interests and views of different parties; but, unfortunately, he too often forms interests of his own, repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole society ? There has not been any moment since the peace at which the representatives of the Union would have given an assent to paper money, or any other measure of a kindred nature.

The national supremacy ought also to be extended, as I conceive, to the Judiciary departments. If those who are to expound and apply the laws are connected by their interests and their oaths with the particular States wholly, and not with the Union, the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems at least necessary that the oaths of the Judges should include a fidelity to the general as well as local Constitution, and that an appeal should lie to some National tribunal in all cases to which foreigners or inhabitants of other States may be parties. The admiralty jurisdiction seems to fall entirely within the purview of the National Government.

The National supremacy in the Executive departments is liable to some difficulty, unless the officers administering them could be made appointable by the Supreme Government. The Militia ought certainly to be placed, in some form or other, under the authority which is entrusted with the general protection and defence.

A Government composed of such extensive powers should be well organized and balanced. The legislative department might be divided into two branches; one of them chosen every years, by the people at large, or by the Legislatures; the other to consist of fewer members, to hold their places for a longer term, and to go out in such a rotation as always to leave in office a large majority of old members. Perhaps the negative on the laws might be most conveniently exercised by this branch. As a further check, a Council of revision, including the great ministerial officers, might be superadded.

A National Executive must also be provided. I have scarcely ventured, as yet, to form my own opinion either of the manner in which it ought to be constituted, or of the authorities with which it ought to be cloathed.

An article should be inserv.d expressly guarantying the tranquillity of the States against internal as well as external dangers.

In like manner the right of coercion should be expressly declared. With the resources of commerce in hand, the National administration might always find means of exerting it either by sea or land. But the difficulty and awkwardness of operating by force on the collective will of a State render it particularly desirable that the necessity of it might be precluded. Perhaps the negative on the laws might create such a mutuality of dependence between the general and particular authorities as to answer this purpose. Or, perhaps, some defined objects of taxation might be submitted, along with commerce, to the general authority.

To give a new system its proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures. This will be the more essential, as inroads on the existing Constitutions of the States will be unavoidable.

The inclosed address to the States on the subject of the Treaty of peace has been agreed to by Congress, and forwarded to the several Executives. We foresee the irritation which it will excite in many of our Countrymen, but could not withhold our approbation of the measure. Both the resolutions and the address passed without a dissenting voice.

Congress continue to be thin, and of course do little business of importance. The settlement of the public accounts, the disposition of the public lands, and arrangements with Spain, are subjects which claim their particular attention. As a step towards the first, the Treasury board are charged with the task of reporting a plan by which the final decision on the claims of the States will be handed over from Congress to a select set of men, bound by their oaths, and cloathed with the powers of Chancellors. As to the second article, Congress have it themselves under consideration. Between six and seven hundred thousand acres have been surveyed and are ready for sale. The mode of sale, however, will probably be a source of different opinions, as will the mode of disposing of the unsurveyed residue. The Eastern gentlemen remain attached to the scheme of townships. Many others are equally strenuous for indiscriminate locations. The States which have lands of their own for sale are suspected of not being hearty in bringing the federal lands to market. The business with Spain is becoming extremely delicate, and the information from the Western settlements truly alarming.

A motion was made some days ago for an adjournment of Congress for a short period, and an appointment of Philadelphia for their reassembling. The eccentricity of this place, as well with regard to East and West as to North and South, has, I find, been for a considerable time a thorn in the minds of many of the Southern members. Suspicion, too, has charged some important votes on the weight thrown by the present position of Congress into the Eastern scale, and predicts that the Eastern members will never concur in any substantial provision or movement for a proper permanent seat for the National Government, whilst they remain so much gratified in its temporary residence. These seem to have been the operative motives with those on one side who were not locally interested in the removal. On the other side, the motives are obvious. Those of real weight were drawn from the apparent caprice with which Congress might be reproached, and particularly from the peculiarity of the existing moment.

I own that I think so much regard due to these considerations, that notwithstanding the principal ones on the other side, I should have assented with great reluctance to the motion, and would even have voted against it, if any probability had existed that, by waiting for a proper time, a proper measure might not be lost for a very long time. The plan which I should have judged most eligible would have been to fix on the removal whenever a vote could be obtained, but so as that it should not take effect until the commencement of the ensuing federal year. And if an immediate removal had been resolved on, I had intended to propose such a change in the plan. No final question was taken in the case. Some preliminary questions showed that six States were in favor of the motion. Rhode Island, the seventh, was at first on the same side, and Mr. Yarnum, one of the delegates, continues so. His colleague was overcome by the solicitations of his Eastern brethren. As neither Maryland nor South Carolina was on the floor, it seems pretty evident that New York has a very precarious tenure of the advantages derived from the abode of Congress.

We understand that the discontents in Massachusetts, which lately produced an appeal to the sword, are now producing a trial of strength in the field of electioneering. The Governor will be displaced. The Senate is said to be already of a popular complexion, and it is expected that the other branch will be still more so. Paper money, it is surmised, will be the engine to be played off against creditors, both public and private. As the event of the elections, however, is not yet decided, this information must be too much blended with conjecture to be regarded as matter of certainty.

I do not learn that the proposed act relating to Yermont has yet gone through all the stages of legislation here; nor can I say whether it will finally pass or not. In truth, it having not been a subject of conversation for some time, I am unable to say what has been done or is likely to be done with it.

Notes of Ancient and Modern Confederacies, preparatory to the federal Convention of 1787.*

In this confederacy, the number of votes allotted to each member was proportioned to its pecuniary contributions. The Judges and town magistrates were elected by the general authority in like proportion.

See Monfofifl"io" who prefers this mode.

The name of a federal republic may be refused to Lycia, which Montesquieu cites as an example in which the importance of the members determined the proportion of their votes in the general councils. The Grison League is a juster example. Code de 1'Hum. Confederation.

Lyciorum quoque avofjuav celebrat Strabo: de qua pauca libet heic subjungere. Fuere eorum urbes XXIII, distinctaa in classes tres pro modo virium. In primS classe censebantur maximae sex, in altera" media3, numero nobis incerto, in tertia* reliquae omnes, quarum fortuna minima. Et singulae quidem urbes has domi res suas curabant, magistratus suos ordinemque civilem suum habebant: universas tamen in unum co-euntes unam communem rempublicam constituebant, concilioque utebantur uno, velut senatu inajore. In eo de bello, de pace, de foederibus, denique de rerum Lyciacarum summa deliberabant et statuebant. Coibant vero in concilium hoc ex singulis urbibus missi cum potestate ferendi suffragii: utebanturque esi in re jure sequissimo. Nam quaslibet urbs primas classis habebat jus suffragiorum trium, secundas duorum, tertian unius. Eademque proportione tributa quoque conferebant, et munia alia obibant.

Quemadmodum enim ratio ipsa dictat, et poscit asquitas, ut plura qui possident, et casteris ditiores sunt, plura etiam in usus communes, et reipublicse subsidia conferant, sic quoque eadem aaquitatis regula postulat, ut in statuendo de re communi iidem illi plus aliis possint: prasserv.m cum eorundem magis intersit rempublicam esse salvam quam tenuiorum. Locum concilii hujus non liabebant fixum et certum, sed ex omnibus urbem deligebant, quas videbatur pro tempore commodissima. Concilio coacto primum designabant Lyciarcham principem totius reipublicas, dein magistratus alios creabant, partes reipublicae administraturos demum judicia publica constituebant. Atque hasc omnia faciebant serv.a" proportione eadem, ut nulla omnino urbs praateriretur munerum ve aut honorum horum non fieret particeps. Et hoc jus illibatum mansit Lyciis ad id usque tempus, quo Romani assumpto Asia3 imperio magna ex parte sui arbitrii id fecerunt. Ubbo Emmius de Lyciorum Republica in Asia. [Apud Grovonii Thes., iv, 597.] Amphictyonic Confederacy.

Instituted by Ainplnctyon,'son of Deucalion, King of Athens, 1522 years Ant. Christ. Code de 1'Humanite.

Seated first at Thermopyla3, then at Delphos, afterwards at these places alternately. It met half yearly, to wit, in the Spring and Fall, besides extraordinary occasions. Id. In the latter meetings, all such of the Greeks as happened to be at Delphos on a religious errand were admitted to deliberate, but not to vote. Encyclopedic.

The number and names of the confederated cities differently reported. The union seems to have consisted originally of the Delphians and their neighbors only, and by degrees to have comprehended all Greece. 10, 11, 12, are the different numbers of original members mentioned by different authors. Code de 1'Humanite.

Each city sent two deputies ; one to attend particularly to Religious matters, the other to civil and criminal matters affecting individuals ; both to decide on matters of a general nature. Id. Sometimes more than two were sent, but they had two votes only. Encyclopedie.

The Amphictyons took an oath mutually to defend and protect the united cities, to inflict vengeance on those who should sacrilegiously despoil the temple of Delphos, to punish the violators of this oath, and never to divert the water-courses of any of the Amphictyonic cities, either in peace or in war. Code de 1'Hum. ^Eschines orat. vs. Ctesiphontem.

The Amphictyonic Council was instituted by way of defence and terror against the Barbarians. Diet de Treviux. Federal Authority.

The Amphictyons had full power to propose and resolve whatever they judged useful to Greece. Encycopedie Pol. (Econ.

1. They judged in the last resort all differences between the Amphictyonic cities. Code de 1'Hum.

2. Mulcted the aggressors. Id.

3. Employed whole force of Greece against such as refused to execute its decrees. Id., and Plutarch, Cimon.

4. Guarded the immense Riches of the Temple at Delphos, and decided controversies between the inhabitants and those who came to consult the Oracle. Encyclop.

5. Superintended the Pythian games. Code de 1'Hum.

6. Exercised right of admitting new members. (See decree admitting Philip, in Demosthenes on Crown.)

7. Appointed General of the federal troops, with full powers to carry their decrees into execution. Ibid.

8. Declared and carried on war. Code de 1'Human.

Strabo says that the Council of the Amphictyons was dissolved in the time of Augustus ; but Pausanias, who lived in the time of Antoninus Pius, says it remained entire then, and that the number of Amphictyons was thirty. Potter's Gre. Ant., vol. 1, pa. 90.

The infif.jtnt.inti rlnp.lined on the admission of Philip, and in the time of the Roman Emperors the functions of the council were reduced to the administration and police of the Temple. This limited authority expired only with the Pagan Religion. Code de 1'Human.

Vices of the Constitution. It happened but too often that the Deputies of the strongest cities awed and corrupted those of the weaker, and that Judgment went in favor of the most powerful party. Id. See, also, Plutarch: Themistocles.

Greece was the victim of Philip. If her confederation had been stricter, and been persevered in, she would never have yielded to Macedon, and might have proved a Barrier to the vast projects of Rome. Code de I'Hum.

Philip had two votes in the Council. Rawleigh Hist, world, lib. 4, c. 1, Sect. 7.

The execution of the Amphictyonic powers was very different from the Theory. Id. It did not restrain the parties from warring against each other. Athens and Sparta were members during their conflicts. Quer.: Whether Thucydides or Xenophon, in their Histories, ever allude to the Amphictyonic authority, which ought to have kept the peace? See Gillies' Hist. Greece, particularly vol. II, p. 345. Achcean Confederacy.

In 124 Olymp Q the l^atrians and Dymasans joined first in this league. Polyb., lib. 2, c. 3.

This League consisted at first of three small cities. Aratus added Sicyon, and drew in many other cities of Achaia and Peloponnesus. Of these he formed a Republic of a peculiar sort. Code de 1'Human.

It consisted of twelve cities, and was produced by the necessity of such a defence against the Etolians. Encyclo. Pol. OB., and Polyb., lib. 2.

The members enjoyed a perfect equality, each of them sending the number of deputies to the Senate. Id.

The Senate assembled in the Spring and Fall, and was also convened on extraordinary occasions by two Przetors, charged with the administration during the recess, but who could execute nothing without the consent of the Inspectors. Id. Frederal Authority.

1. The Senate, composed of the deputies, made war and peace. D'Albon I, page 270.

2. Appointed a Captain General annually. Co. d'Hum.

3. Transferred the power of deciding to ten citizens taken from the deputies, the rest retaining a right of consultation only. Id.

4. Sent and received Ambassadors. D'Albon. Ibid.

5. Appointed a prime Minister. D'Albon. Ibid.

6. Contracted foreign alliances. Code de 1'Hum.

7. Confederated cities in a manner forced to receive the same laws and customs, weights and measures, (Id., and Polyb., lib. 2, cap. 3,) yet considered as having each their independent police and Magistrates. Encyclop. Pol. CEcon.

8. Penes hoc concilium erat summum rerum arbitrium, ex cujus decreto bella suscipiebantur, et finiebantur, pax conveniebat, foedera feriebantur et solvebantur, leges Jtebant ratce aut irritce. Hujus etiam erat, Magistratus toti Societati communes eligere, legationes decernere,

Ista vero imprimis memorabilis lex est, vinculum societatis Achaicae maxime stringens, et concordiam muniens, qua* interdictum fuit, ne cui civitati Societatis hujus participi fas esset, seorsim ad exteros ultos mittere legates, non ad Romanes, non ad alios. Et hasc expressim inserv. fuit pactis conventis Achaeorum cum populo Romano. * * * * Omnium autem laudatissima lex apud eos viguit * * * qua* vetitum, ne quis omnino, sive privates conditionis, seu magistratum gerens, ullam ob causam, quascunque etiam sit, dona a Rege aliquo caperet. Id. [Ap. Gron. Thes., iv, 575.] Vices of the Constitution.

The defect of subjection in the members to the general authority ruined the whole Body. The Romans seduced the members from the League by representing that it violated their sovereignty. Code de 1'Hum.

After the death of Alexander, this Union was dissolved by various dissentions, raised chiefly thro' the acts of the Kings of Macedon. Every city was now engaged in a separate interest, and no longer acted in concert. Polyb., lib. 2, cap 3. After, in 124 Olymp d , they saw their error, and began to think of returning to their former State. This was the time when Pyrrhus invaded Italy. Ibid.

Commenced in 1308 by the temporary and in 1315 by the perpetual Union of Uri, Schweitz, and Underwald, for the defence of their liberties against the invasions of the' House of Austria. In 1315 the Confederacy included 8 Cantons. In 1513 the number of thirteen was compleated by the accession of Appenzel. Code de 1'Hum.

The General Diet representing the United Cantons is composed of two deputies from each. Some of their allies, as the Abbe S fc . Gall, &c., are allowed by long usage to attend by their deputies. Id.

All general Diets are held at such time and place as Zurich, which is first in rank and the depository of the common archives, shall name in a circular summons. But the occasion of annual conferences for the administration of their dependent bailages has fixed the same time, to wit, the feast of St. John, for the General Diet, and the city of Frauenfeld, in Turgovia, is now the place of meeting. Formerly it was the city of Baden. Id.

The Diet is opened by a complimentary address of the first deputy of each canton by turns, called the Helvetic salutation. It consists in a congratulatory review of circumstances and events favorable to their common interest, and exhortations to Union and patriotism.

The deputies of the first canton, Zurich, propose the matters to be discussed. Questions are decided by plurality of voices. In case of division, the Bailiff of Turgovia has the casting one. The session of the Diet continues about a month. Id.

After the objects of universal concern are despatched, such of the deputies whose constituents have no share in the dependent bailages withdraw, and the Diet then becomes a representation of the cantons to whom these bailages belong, and proceeds to the consideration of the business relating thereto. Id.

Extraordinary Diets for incidental business, or giving audience to foreign ministers, may be called at any time by any one of the cantons, or by any foreign minister who will defray the expence of meeting. Seldom a year without an extraordinary Diet. Stanyan's Switzerland.

There is an annual Diet of 12 cantons, by one deputy from each, for the affairs of the ultra-montane bailages. Code de 1'Human.

Particular cantons also have their diets for their particular affairs, the time and place for whose meeting are settled by their particular treaties.

All public affairs are now treated, not in General Diet, but in the particular assemblies of protestant and catholic cantons. D'Albon.

Federal Authority.

The title of Republican and Sovereign State improperly given to this Confederacy, which has no concentered authority, the Diets being only a Congress of Delegates from some or all of the cantons, and having no fixt objects that are national. Dictionnaire de Suisse.

The 13 cantons do, not make one Commonwealth like the United Provinces, but are so many independent Commonwealths in strict alliance. There is not so much as any common instrument by which they are all reciprocally bound together. The 3 primitive cantons alone being each directly allied to the other twelve. The others, in many instances, are connected indirectly only, as allies of allies. In this mode, any one canton may draw in all the others to make a common cause in its defence. Stanyan.

The confederacy has no common Treasury, no common troops, no common coin, no common Judicatory, nor any other common mark of sovereignty. Id.

The General Diet cannot terminate any interesting affair without special instructions and powers, and the deputies accordingly take most matters proposed ad referendum. Code de 1'Hum.

The Cantons individually exercise the right of sending and receiving ambassadors, making treaties, coining money, proscribing the money of one another, prohibiting the importation and exportation of merchandise, furnishing troops to foreign States, and doing everything else which does not wound the liberty of any other canton. Excepting a few cases specified in the alliances, and which directly concern the object of the league, no canton is subject to the Resolutions of the plurality. Id.

The only establishment truly national is that of a federal army, as regulated in 1668, and which is no more than an eventual plan of defence adopted among so many allied States. Id.

1. The league consists in a perpetual defensive engagement against external attacks and internal troubles. It may be regarded as an axiom in the public law of the confederacy, that the federal engagements are precedent to all other political engagements of the cantons. Id.

2. Another axiom is, that there are no particular or common possessions of the cantons for the defence of which the others are not bound as Guarantees, or auxiliaries of Guarantees. Id.

3. All disputes are to be submitted to neutral cantons, who may employ force, if necessary, in execution of their decrees. Id. Each party to choose 4 Judges, who may, in case of disagreement, choose umpire, and these, under oath of impartiality, to pronounce definitive sentence, which all cantons are to enforce. D'Albon and Stanyan.

4. No canton ought to form new alliances without the consent of the others ; [this was stipulated in consequence of an improper alliance in 1442, by Zurich, with the House of Austria.] Id.

5. It is an essential object of the league to preserv.interior tranquillity by the reciprocal protection of the form of Government established in each Canton, so that each is armed with the force of the whole corps for the suppression of rebellions and revolts, and the history of Switzerland affords frequent instances of mutual succors for these purposes. Diet" de Suisse.

6. The Cantons are bound not to give shelter to fugitives from Justice, in consequence of which each Canton can at this day banish malefactors from all the territories of the League. Id.

7. Though each Canton may prohibit the exportation and importation of merchandise, it must allow it to pass through from one neighboring Canton to another without any augmentation of the tolls. Code de 1'Hum.

8. In claiming succours against foreign powers, the 8 Elder Cantons have a more extensive right than the 5 junior ones. The former may demand them of one another without explaining the motives of the quarrel. The latter cannot intermeddle but as mediators or auxiliaries; nor can they commence hostilities without the sanction of the Confederates; and if cited by their adversaries, cannot refuse to accept the other Cantons for arbiters or Judges. Diet" de Suisse.

9. In general, each Canton is to pay its own forces, without compensation from the whole, or the succoured party. But in case a siege is to be formed for the benefit of a particular Canton, this is to defray the expence of it, and if for the common benefit, each is to pay its just proportion. D'Albon. On no pretext is a Canton to be forced to march its troops out of the limits of Switzerland. Stanyan.

10. Foreign Ministers from different Nations reside in different Cantons. Such of them as haveof credence for the whole Confederacy address them to Zurich, the chief Canton. The Ambassador of France, who has most to do with the Confederacy, is complimented at his quarters by deputies from the whole body. Vices of the Constitution .

1. Disparity in size of Cantons.

2. Different principles of Government in different Cantons.

3. Intolerance in Religion.

4. Weakness of the Union. The common bailages, which serv. as a cement, sometimes become occasions of quarrels. Dict re de Suisse.

In a treaty in 1683 with Victor Amadceus, of Savoy, it is stipulated that he shall interpose as mediator in disputes between the Cantons, and, if necessary, use force against the party refusing to submit to the sentence. Dict re de Suisse. A striking proof of the want of authority in the whole over its parts.

Established in 1679, by the Treaty called the Union of Utrecht. Code de I'Humanite.

The provinces came into this Union slowly. Guelderland, the smallest of them, made many difficulties. Even some of the Cities and Towns pretended to annex conditions to their acceding. Id.

"When the Union was originally established, a committee, composed of deputies from each province, was appointed to regulate affairs, and to convoke the provinces according to article XIX of the Treaty. Out of this Committee grew the States General, (Id.,) who, strictly speaking, are only the Representatives of the States General, who amount to 800 members. Temple, p. 112.

The number of Deputies to the States General from each province not limited, but have only a single voice. They amount commonly, altogether, to 40 or 50. They hold their seats, some for life, some for 6, 3, and 1 years, and those of Groningen and Overyssel during pleasure. They are paid, but very moderately, by their respective constituents, and are amenable to their Tribunals only. Code de 1'Hum. No military man is deputable to the States General. Id.

Ambassadors of Republic have session and deliberation, but no suffrage in States GEN'L . Id. The grand pensioner of Holland, as ordinary deputy from Holland, attends always in the States General, and makes the propositions of that province to States General. Id.

They sit constantly at the Hague since 1593, and every day in the week except Saturday and Sunday. The States of Holland, in granting this residence, reserv. by way of protestation, the rights, the honors, and prerogatives, belonging to them as sovereigns of the province, yiejding the States General only a rank in certain public ceremonies. Id.

The eldest deputy from each province presides for a week by turns. The President receives, &c., from the Ministers of the Republic at foreign Courts, and of foreign Ministers residing at the Hague, as well as of all petitions presented to the Assembly; all which he causes to be read by the Secretary. Id.

The Secretary, besides correcting and recording the Resolutions, prepares and despatches instructions to Ministers abroad, andto foreign powers. He assists, also, at conferences held with foreign Ministers, and there gives his voice. He has a deputy when there is not a second Secretary. The agent of the States General is charged with the Archives, and is also employed on occasions of receiving foreign Ministers or sending Messages to them. Id. Federal Authority.

The avowed objects of the Treaty of Union: 1. To fortify the Union. 2. To repel the common enemy. Id.

The Union is to be perpetual in the same manner as if the Confederates formed one province only, without prejudice, however, to the privileges and rights of each province and City. Id.

Differences between provinces and between cities are to be settled by the ordinary Judges, by arbitration, by amicable agreement, without the interference of other provinces, otherwise than by way of accommodation. The Stadtholder is to decide such differences in the last resort. Id.

No change to be made in the articles of Union without unanimous consent of the parties, and everything done contrary to them to be null and void. Id. States General.

1. Execute, without consulting their constituents, treaties and alliances already formed. Id.

2. Take oaths from Generals and Governors, and appoint Field Deputies.

3. The collection of duties on imports and exports, and the expedition of safe conducts, are in their name and by their officers. Id.

4. They superintend and examine accounts of the E. India Company. Id.

5. Inspect the Mint, appoint les Maitres de la Monnoye, fix la taille and la valeur of the coin, having always regard to the regular rights of the provinces within their own Territories. Id.

6. Appoint a Treasurer General and Receiver General of the Quotas furnished by the provinces. Id.

7. Elect, out of a double nomination, the fiscal and other officers within the departments of the admiralties, except that the High officers of the fleet are appointed by the Admiral General, to whom the maritime provinces have ceded this right. Id. The Navy, supported by duties on foreign trade, appropriated thereto by the maritime provinces, for the benefit of the whole Republic. Id.

8. They govern as sovereigns the dependent territories, according to the several capitulations. Id.

9. They form Committees of their own body, of a member from each deputation, for foreign affairs, finances, marine, and other matters. At all these conferences the Grand Pensioner of Holland and the secretary of the States General attend, and have a deciding voice. Id.

10. Appoint and receive Ambassadors, negociate with foreign powers, deliberate on war, peace, alliances, the raising forces, care of fortifications, military affairs to a certain degree, the equipment of fleets, building of ships, directions concerning money. Id. But they can neither make peace, nor war, nor truces, nor treaties, nor raise troops, nor impose taxes, nor do other acts requiring unanimity, without consulting and obtaining the sanction of the Provinces. Id. Coining money also requires unanimity and express sanction of provinces. Temple. Repealing an old law on same footing. Burrish. Batav. illustrata. In points not enumerated in this article, plurality of voices decides. Code de 1'Hum.

11. Composition and publication of edicts and proclamations relative both to the objects expressed in the articles of union and to the measures taken for the common good, are in the name of the States ; and altho' they are addressed to the States of the Provinces, who announce them with their sanction, still it is in the name of the States General that obedience is required of all the inhabitants of the Provinces. Code de 1'Hum.

The Provinces have reserv. to themselves

1. Their sovereignty within their own limits in general. Code de 1'Hum.

2. The right of coining money, as essential to sovereignty; but agreed, at the same time, that the money which should be current throughout the Republic should have the same intrinsic value. To give effect to which regulation a mint is established at the Hague, under a chamber which has the inspection of all money struck, either in name of States General or particular provinces, as also of foreign coin. Id. Coining money not in provinces or cities, but in the generality of union, by common agreement. Temple.

3. Every province raises what money and by what means it pleases, and sends its quota to Receiver General. Temple.

The quotas were not settled without great difficulty. Id.

4. The naming to Governments of Towns within themselves; keeping keys, and giving word to Magistrates; a power over troops in all things not military; conferring Col", commissions and inferior posts in such Regiments as are paid by the provinces; respectively taking oath of fidelity; concerning a revocation of all which the States General are not permitted to deliberate. Id.

The provinces are restricted

1. From entering into any foreign treaties without consent of the rest. Code de 1'Hum.

2. From establishing imposts prejudicial to others without general consent. Id.

3. From charging their neighbors with higher duties than their own subjects. Id.

Council of State composed of deputies from the provinces, in different proportions. 3 of them are for life; the rest generally for 3 years ; they vote per capita. Temple.

They are subordinate to the States General, who frequently, however, consult with them. In matters of war which require secrecy they act of themselves. Military and fiscal matters are the objects of their administration.

They execute the Resolutions of the States General, propose requisitions of men and money, and superintend the fortifications, &c., and the affairs, revenues, and Governments, of the conquered possessions. Temple.

Chamber of Accounts was erected for the ease of the Council of State. It is subordinate to the States General; is composed of two deputies from each province, who are changed triennially. They examine and state all accounts of the several Receivers; controul and register orders of Council of State disposing of the finances. Id.

College of Admiralty, established by the States General, 1597, is subdivided into five, of which three are in Holland, one in Zealand, one in Friezland, each composed of seven deputies, four appointed by the province where the admiralty resides, and three by the other provinces. The vice admiral presides in all of them when he is present. Temple.

They take final cognizance of all crimes and prizes at sea;

of all frauds in customs; provide

quota of fleets resolved on by States General; appoint Captains and superior officers of each squadron; take final cognizance, also, of civil matters within 600 florins, an appeal lying to States General for matters beyond that sum. Code de 1'Hum. and Temple.

The authority of States General in Admiralty Department is much limited by the influence and privileges of maritime provinces, and the jurisdiction herein is full of confusion and contradiction. Code de I'Humanite.

Stadtholder, who is now hereditary, in his political capacity is authorized

1. To settle differences between provinces, provisionally, till other methods can be agreed on, which having never been, this prerogative may be deemed a permanent one. Code de PHum.

2. Assists at deliberations of States General and their particular conferences; recommends and influences appointment of Ambassadors. Id.

3. Has seat and suffrage in Council of State. Id.

4. Presiding in the provincial Courts of Justice, where his name is prefixed to all public acts. Id.

5. Supreme Creator of most of the Universities. Id.

6. As Stadtholder of the provinces, has considerable rights partaking of the sovereignty; as appointing town magistrates, on presentation made to him of a certain number. Executing provincial decrees, &c. Id. and Mably; Etud. de 1'hist.

7. Gives audiences to Ambassadors, and may have agents with their Sovereigns for his private affairs. Mab. Ibid.

8. Exercises power of pardon. Temple.

In his Military capacity as Captain General

1. Commands forces; directs marches; provides for garrisons; and, in general, regulates military affairs. Code de I'Hum.

2. Disposes of all appointments, from Ensigns to Col 8 . The Council of State having surrendered to him the appointments within their disposal, (Id.,) and the States General appoint the higher grades on his recommendation. Id.

3. Disposes of the Governments, &c., of the fortified towns, tho' the commissions issue from the States General. Id.

In his Marine capacity as Admiral General

1. Superintends and directs everything relative to naval forces and other affairs within Admiralty. Id.

2. Presides in the admiralties in person or by proxy. Id.

3. Appoints Lieu*. Admirals and officers under them. Id.

4. Establishes Councils of war, whose sentences are in the name of the States General and his Highness, and are not executed till he approves. Id.

The Stadtholder has a general and secret influence on the great machine which cannot be defined. Id.

His revenue from appointments amounts to 300,000 florins, to which is to be added his extensive patrimonies. Id.

The standing army of the Republic, 40,000 men. Vices i)f the Constitution.

The Union of Utrecht imports an authority in the States General seemingly sufficient to secure harmony; but the jealousy in each province of its sovereignty renders the practice very different from the Theory. Code de 1'Hum.

It is clear that the delay occasioned by recurring to seven independent provinces, including about 52 voting Cities, &c., is a vice in the Belgic Republic which exposes it to the most fatal inconveniences. Accordingly, the fathers of their country have endeavored to remedy it, in the extraordinary assemblies of the States General in 1584, in 1651, 1716, 1717, but, unhappily, without effect. This vice is, notwithstanding, deplorable. Id. Among other evils, it gives foreign Ministers the means of arresting the most important deliberations by gaining a single Province or City. This was done by France in 1726, when the Treaty of Hanover was delayed a whole year. In 1688 the States concluded a Treaty of themselves, but at the risk of their heads. Id. It is the practice, also, in matters of contribution or subsidy, to pass over this article of the Union; for where delay would be dangerous, the consenting provinces furnish their quotas without waiting for the others; but by such means the Union is weakened, and, if often repeated, must be dissolved. Id.

Foreign Ministers elude matters taken ad referendum, by tampering with the Provinces and Cities. Temple, p. 116.

Treaty of Union obliges each Province to levy certain contributions. But this article never could and probably never will be executed, because the inland provinces, who have little commerce, cannot pay an equal Quota. Burrish. Bat. illustrat.

Deputations from agreeing to disagreeing Provinces frequent. Tern.

It is certain that so many independent corps and interests could not be kept together without such a center of union as the Stadtholdership, as has been allowed and repeated in so many solemn acts. Code de FHum.

In the intermission of the Stadtholdership, Holland, by her riches and authority, which drew the others into a sort of dependence, supplied the place. Temple.

With such a Government the Union never could have subsisted, if, in effect, the provinces had not within themselves a spring capable of quickening their tardiness and impelling them to the same way of thinking. This spring is the Stadtholder. His prerogatives are immense 1, &c.,

Grotius has said that the hatred of his countrymen against the House of Austria kept them from being destroyed by the vices of their Constitution. Ibid.

The difficulty of procuring unanimity has produced a breach of fundamentals in several instances. Treaty of Westphalia was concluded without consent of Zealand, &c. D'Albon and Temple. These tend to alter the constitution. D'Albon.

It appears by several articles of the Union that the confederates had formed the design of establishing a General tax, [Impot,] to be administered by the States GEN'L . But this design, so proper for bracing this happy Union, has not been executed. Code de 1'Hum.

Germanic Confederacy took its present form in the year . Code de FHum.

The Diet is to be convoked by the Emperor, or, on his failure, by the Archbishop of Mentz, with consent of Electors, once in ten years at least from the last adjournment, and six months before the time of meeting. Ratisbon is the seat of the Diet since 1663.

The members amount to 285, and compose three colleges, to wit: that of the Electors, of Princes, of Imperial Cities. The voices amount to 159, of which 153 are individual and 6 collective. The latter are particular to the College of Princes, and are formed out of 39 prelates,

The three Colleges assemble in the same House, but in different apartments. Id.

The Emperor, as head of the Germanic body, is President of the Diet. He and others are represented by proxies at present. Id.

The deliberations are grounded on propositions from Emperor, and commence in the College of Electors, from whence they pass to that of the Princes, and thence to that of the Imperial Cities. They are not resolutions till they have been passed in each. "When the Electors and Princes cannot agree, they confer; but do not confer with the Imperial Cities. Plurality of voices decide in each College, except in matters of Religion and a few reserv. cases, in which, according to the Treaty of Westphalia and the Imperial Capitulations, the Empire is divided into the Catholic and Evangelic Corps. Id.

After the Resolutions have passed the three Colleges they are presented to the Representative of the Emperor, without whose ratification they are null. Id. They are called placita after passing the three Colleges; conclusa, after ratification by Emperor. Id.

The collection of acts of one Diet is called the Recess, which cannot be made up and have the force of law till the close of the Diet. The subsisting diet has not been closed for more than a hundred years; of course it has furnished no effective Resolu- tion, though a great number of interesting ones have passed. This delay proceeds from the Imperial Court, who refuse to grant a recess, notwithstanding the frequent and pressing applications made for one. Id. Federal Authority.

The powers as well as the organization of the Diet have varied at different times. Antiently it elected as a corps the Emperors, and judged of their conduct. The Golden Bull gives this right to the Electors alone. Antiently it regulated tolls; at present the Electors alone do this. Id.

The Treaty of Westphalia and the capitulations of the Emperors, from Charles V downwards, define the present powers of the Diet. These concern 1. Legislation of the Empire. 2. War and peace, and Alliances. 3. Raising troops. 4. Contributions. 5. Construction of fortresses. 6. Money. 7. Ban of the Empire. 8. Admission of new princes. 9. The Supreme tribunals. 10. Disposition of grand fiefs and grand charges. In all these points the Emperor and Diet must concur. Id.

The Ban of the Empire is a sort of proscription, by which the disturbers of the public peace are punished. The offender's life and goods are at the mercy of every one; formerly, the Emperors themselves pronounced the ban against those who offended them. It has been since regulated that no one shall be exposed to the ban without the examination and consent of the Diet. Encyclop.

By the Ban the party is outlawed, degraded from all his federal rights, his subjects absolved from their allegiance, and his possessions forfeited. Code de 1'Hum.

The Ban is incurred when the Emperor or one of the supreme Tribunals address an order to any one, on pain, in case of disobedience, of being proscribed ipso facto. Id.

The Circles, formerly, were in number six only. There are now ten. They were instituted for the more effectual preserv.ion of the public peace, and the execution of decrees of Diet and supreme Tribunals against contumacious members, for which purposes they have their particular diets, with the chief Prince of the circle at their head, have particular officers for commanding the forces of the Circle, levy contributions, see that justice is duly administered, that the coin is not debased, that the customs are not unduly raised. Savage, vol. 2, p. 35.

If a circle fail to send its due succours, it is to pay damages suffered therefrom to its neighbours. If a member of the circle refuse, the Col. of the circle is to admonish; and if this be insufficient, the delinquent party is to be compelled under a sentence from the Imperial Chamber. Id.

Imperial Chamber, established in 1495 by the Diet, as a means of public peace, by deciding controversies between members of the Empire. Code de 1'Hum.

This is the first Tribunal of the Empire. It has an appellate jurisdiction in all Civil and fiscal causes, or where the public peace may be concerned. It has a concurrent jurisdiction with the Aulic Council, and causes cannot be removed from one to the other. Id.

The Judges of this Tribunal are appointed partly by the Emperor, partly by Electors, partly by circles; are supported by all the States of the Empire, excepting the Emperor. They are badly paid, though great salaries are annexed to their offices. Id.

In every action, real or personal, The Diet, Imperial Chamber, and Aulic Council, are so many supreme Courts, to which none of the States can demur. The jurisprudence by which they govern themselves are, according to the subject-matter: 1. The provincial laws of Germany. 2. The Scripture. 3. The law of nature. 4. Law of Nations. 5. The Roman law. 6. The canon law. 7. The fcedal law of the Lombards. Id.

Members of Diet, as such, are subject in all public affairs to be judged by Emperor and Diet; as individuals in private capacity, are subject to Aulic Council and Imperial Chamber. Id.

The members have reserv. to themselves the right 1. To enter into war and peace with foreign powers. 2. To enter into alliances with foreign powers and with one another, not prejudicial to their engagements to the Empire. Code de 1'Hum. 3. To make laws, levy taxes, raise troops, to determine on life and death. Savage. 4. Coin money. Id. 5.

Exert territorial sovereignty within their limits in their own name. Code de FHum. 6. To grant pardons. Savage, p. 44. 7. To furnish their quotas of troops, equipped, mounted, and armed, and to provide for sustenance of them, as if they serv. at home. Code de 1'Hum.

Aulic Council, [established by Diet in 1512. Encyclop.,] composed of members appointed by the Emperor. uode'de 1'Hum.

Its cognizance is restrained to matters above 2,000 crowns; is concurrent with the jurisdiction of the Imperial Chamber in controversies between the States; also, in those of subjects of the Empire by way of appeal from subaltern Tribunals of the Empire, and from sovereign Tribunals of Princes. Id. Arms are to be used for carrying its decrees into execution, as was done in 1718 by the troops of the Circle of upper Rhine, in a controversy between Landgrave of Hesse Cassel and Prince of Hesse of Rhinfitz. Id.

Members of Empire restricted

1. From entering into Confederacies prejudicial to the Empire.

2. From laying tolls or customs upon bridges, rivers, or passages, to which strangers are subject, without consent of the Emperor in full diet.

3. Cannot give any other value to money, nor make any other kind of money, than what is allowed by the Empire. Savage, vol. 2, p. 45.

4. (By edict of 1548, particularly,) from taking arms one against another; from doing themselves justice; from affording retreat, much more assistance, to infractors of the public peace; the ban of the Empire being denounced 'against the transgressors of these prohibitions, besides a fine of 2,000 marks of Gold and loss of regalities. Code d'Hum.

Emperor has the prerogative 1. Of exclusively making propositions to the Diet. 2. Presiding in all Assemblies and Tribunals o*. the Empire when he chooses. 3. Of giving suffrage in all affairs treated in the Diet. 4. Of negativing their resolutions. 5. Of issuing them in his own name. 6. Of watching over the safety of the Empire. 7. Of naming Ambassadors to negociate within the Empire, as well as at foreign Courts, affairs concerning the Germanic Corps. 8. Of re-establishing in good fame persons dishonored by Council of war and civil Tribunals. Code d'Hum. 9. Of giving investiture of the principal immediate fiefs of the Empire; which is no,t, indeed, of much consequence. 10. Of conferring vacant electorates. 11. Of preventing subjects from being withdrawn from the jurisdiction of their proper judge. 12. Of conferring charges of the Empire. 13. Of conferring dignities and titles, as of Kings, &c. 14. Of instituting military orders. 15. Of granting the dernier resort. 16. Of judging differences and controversies touching tolls. 17. Of deciding contests between Catholic and Protestant States, touching precedence, &c. Id. 18. Of founding Universities within the lands of the States, so far as to make the person endowed with Academic honors therein be regarded as such throughout Germany. 19. Of granting all sorts of privileges not injurious to the States of the Empire. 20. Of establishing great fairs. 21. Of receiving the droit des Postes generales. 22. Of striking money, but without augmenting or diminishing its value. 23. Of permitting strangers to enlist soldiers, conformably to Recess of 1654. Id. 24. Of receiving and applying Revenues of Empire. Savage, p. . He cannot make war or peace, nor laws, nor levy taxes, nor alter the denomination of money, nor weights or measures. Savage, v. 2, p. 35. The Emperor, as such, does not properly possess any territory within the Empire, nor derive any revenue for his support. Code de 1'Hum. Vices of the Constitution.

1. Tne Quotas are complained of, and supplied very irregularly and defectively. Code de FHum. Provision is made by decree of diet for enforcing them, but it is a delicate matter to execute it against the powerful members. Id.

2. The establishment of the Imperial Chamber has not been found an efficacious remedy against civil wars. It has committed faults. The Ressortissans have not always been docile. Id. 3. Altho' the establishment of Imperial Chambers, &c., give a more regular form to the police of the fiefs, it is not to be supposed they are capable of giving a certain force to the laws and maintaining the peace of the Empire, if the House of Austria had not acquired power enough to maintain itself on the Imperial Throne, to make itself respected, and to give orders which it might be imprudent to despise, as the laws were therefore despised. Mably Etude de hist., p. 130.

[Jealousy of the Imperial authority seems to have been a great cement of the Confederacy.]

More Resources

    Author:
    James Madison

    Source:
    Letters and other writings of James Madison. Vol. I. 1769-1793. Philadelphia, J. B. Lippencott & Co, 1865, digitized by archive.org