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Ratification Debates
Digital History ID 178

Author:   Edmund Pendleton


Writing two weeks after the Convention of 1787 adopted the Constitution, Benjamin Rush (1746-1813), a signer of the Declaration of Independence and the new nation's leading physician described the Constitution as a "masterpiece of human wisdom." I now look forward to a golden age in America," he wrote. "The new Constitution realizes every hope of the patriot & rewards every toil of the hero." His only misgiving was that he wished the Convention "had gone further, & absorbed more of the power of our State governments."

In the following letter to James Madison, the "Father of the Constitution," the Virginia jurist Edmund Pendleton (1721-1803) offers a careful and candid appraisal of the new Constitution, examining whether it conforms to republican principles of government.


To expect individual or even state unanimity in points of so great magnitude and difficulty, was contrary to all experience, and to maintain one's opinion by all the arguments which reason and mental powers afford, is manly & becoming whilst the subject is in agitation & suspense; but to yield to the decision of a majority, when further opposition can have no good, & may produce many bad effects, is not only commendable, but in my opinion an individual duty....

I have read the paper [a critique of the Constitution] with great attention, but without the aid of any judicious friend to confer with; however I mean to trouble you with my thoughts upon it, as they occur, which, tho' I do not flatter myself with a thought that they will be useful to you, will be doing on my part what you seem to have expected, when you did me the honour of sending it.

I began to read it with two impressions on my mind, with which I think every reader of it should set out. 1st. That something was necessary to be done, and that a plan, very far short of perfection, was greatly preferable to our present condition, and which would probably have been considered as desperate, if the Convention had risen without doing anything. 2nd. That in Governments as well as other things, perfection is unattainable, and indeed attempts to approach it, by too much refinement, generally produce more mischief than good. I recollect the very sensible observations of Sir William Temple "That none was ever perfect, or free from very many & just exceptions.... An absolute monarchy ruins the people; one limited endangers the Prince; an aristocracy is subject to emulations of the great, and oppression of the poor; and a democracy to popular tumults & convulsions." His conclusion is "A perfect scheme of government seems as endless and as useless a search as that of the universal medicine or the Philosopher's stone." And mine is that all which human wisdom is capable of on this great occasion is to adopt the form most likely to coincide with the genius of the people to be governed; to preserve the great outlines and fundamentals of that form, and avoid, as far as may be, the natural infirmities, which experience has probed to be annexed to it.

A Republic was inevitably the American form, and its natural danger popular tumults & convulsions. With these in view I read over the Constitution accurately and do not find a trait of any violation of the great principles of the form, all power being derived mediately or immediately from the people; no titles or powers that are either hereditary or of long duration so as to become inveterate.... The people, the origin of power by representation--the [members of the House of Representatives]...are to consist of their immediate choice, and the choice of the Federal Senate and President, seems admirably contrived to prevent popular tumults, as well to preserve the equilibrium expected from balancing power of the three branches. In the power of negation [the President's veto power, which can be overridden by two-thirds vote of both houses of Congress] to the laws, the modification strikes out a happy balance between an absolute negative in a single person, and having no stop & cheque upon laws too hastily passed....

The President is indeed to be a great man, but 'tis only to represent the Federal dignity & power, having no latent prerogatives, any powers but such as are defined & given him by law. He is to be Commander in Chief of the Army & Navy, but Congress are to raise & pay them, and that not for above two years at a time. He is to nominate officers, but Congress must first create the offices & fix them and may discontinue them at pleasure, & he must have the consent of 2/3ds of the Senate to his nomination. Above all his tenure of office is short, & the danger of impeachment a powerful restraint against abuse of office. A political head and that adorned with powder'd hair, seem necessary & useful in government...; and I have observed in the history of the United Netherlands, their affairs always succeeded best, when they allowed their [official] to exercise his Constitutional powers.

I was struck with the objection to the Senate having been made an Executive Council, since having a participation in two branches, they influence laws for recreating unnecessary offices, or giving extravagant salaries to those necessary, & then fill them up with themselves, their families or dependents & thought it best to have the three branches kept wholly distinct from each other, and as an executive council was necessary, I cast about for their formation, & though they might be found in the numbers voted for President, but when I considered that the objection has not force but in the case of a general corruption pervading the whole Legislative & Executive bodies, and that on such a supposition it would admit of no remedy, and what was afforded by new elections or by recurring to revolution principles; that in the House of Representatives, as well as the incapacity of members of either House to be appointed to offices created whilst they are members, there are considerable cheques on the Senate; and above all as the considerable expense of this separate Council is saved (and I am more afraid of expense than fraud) I became reconciled to the mode, as an evil which did not admit of a remedy, that would not introduce a greater evil.

The like objection occurs to the Senate's being made the triers upon impeachments, and they therein participate in the judicial powers, and it may be added that in case of impeachment of the President for mal-conduct by their advice, they will be a strange tribunal to judge of it; at the same time it will be objected to as borrowed from the British form and approximating too nearly to the obnoxious power of the Lords. Tho' I do not see any material reason for having taken this trial out of the judiciary course, yet it is really not so exceptional as it at first appears. The mode of prosecution as generally practiced, is not a favorite with me, being generally the engine of party contentions for office, and no matter how seldom practiced. It is in the hands of the House of Representatives, who will not use it in the case supposed, or if they do, and meet the obstruction, may yet resort to the Courts of Justice, as an acquittal would not bar that remedy--the assimilation to the power of the Lords, is too futile to merit notice.

The line between Federal and State powers, the most difficult part of the work, appears to me most happily drawn, and I much applaud that spirit of amity and concession which produced, and which I hope may continue to perfect it. In the regulations of commerce however, I shall hope not to see projects introduced for discouraging foreign trade, or driving us too soon into manufactures, in favor of which our presses have groaned under labour'd nonsense in the course of this summer. Trade & manufactures should both be free, and will make their way in proper time.

The restrictions of paper emissions & unjust tender laws are alone of value sufficient to outweigh all objections to the system. In the exclusive right of coining, I foresee great risque & expense in conveying bullion & money between the seat of Congress & the remote states, over balancing the Federal revenue, which seems the only reason for confining it. When Congress fixed the proportion of alloy, the value of the coin, and other regulations to prevent counterfeits, might not the states have been trusted with coining subject to those rules?

In art. 2 Clause 5th are these words "Nor shall vessels bound to or from one state, be obliged to enter clear or pay duties in another," which do not appear sufficiently explicit. If it was intended to allow a free trade between the states without entry, clearance or duty, (which does not seem to be meant, tho' the words may bear that construction) will it not tend to defeat all regulations of commerce & revenue? If, as I supposed, it was intended to reach the cases only of casually touching at a state port they were not bound to, or passing through one state to get to their ports in another, (as the vessels of Maryland do thro' ours in navigating Chesapeake) there appears to want words of restriction from trading added to the exemption.

My last criticism you will probably laugh at, tho' it is really a serious one with me. Why require an oath from public officers, and yet interdict all religious tests, their only sanction? Those hitherto adopted have been narrow & illiberal, because designed to preserve established modes of worship; but since a belief of a future state of rewards & punishments, can alone give conscientious obligation to observe an oath, it would seem that test should be required or oaths abolished.

It is time I had done with my trifling observation, with which & a thousand others more material, you had been sufficiently tried at Phil[adelphi]a, I will only add my warmest thanks as an individual to the authors of the work of their labours, & declare my unequivocal acceptance of it, with all it's imper

Source: Gilder Lehrman Institute

Additional information: Edmund Pendleton to James Madison

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