Speech in Congress on "Self-Created
November 27, 1794.
Mr. Madison — said he entirely agreed with those gentlemen who had
observed that the house should not have advanced into this discussion, if it
could have been avoided — but having proceeded thus far it was
indispensably necessary to finish it.
Much delicacy had been thrown into the discussion, in consequence of the
chief magistrate; he always regretted the circumstance, when this was the
This he observed, was not the first instance of difference in opinion
between the President and this house. It may be recollected that the President
dissented both from the Senate and this House on a particular law (he referred
to that apportioning the representatives) — on that occasion he thought
the President right. On the present question, supposing the President really to
entertain the opinion ascribed to him, it affords no conclusive reason for the
House to sacrifice its own judgment.
It appeared to him, as it did to the gentleman from Georgia, that there
was an innovation in the mode of procedure adopted, on this occasion. The house
are on different ground from that usually taken — members seem to think
that in cases not cognizable by law, there is room for the interposition of the
House. He conceived it to be a sound principle that an action innocent in the
eye of the law, could not be the object of censure to a legislative body. When
the people have formed a constitution, they retain those rights which they have
not expressly delegated. It is a question whether what is thus retained can be
legislated upon. Opinions are not the objects of legislation. You animadvert on
the abuse of reserved rights — how far will this go? It may extend
to the liberty of speech and of the press.
It is in vain to say that this indiscriminate censure is no punishment.
If it falls on classes or individuals it will be a severe punishment. He wished
it to be considered how extremely guarded the constitution was in respect to
cases not within its limits. Murder or treason cannot be noticed by the
legislature. Is not this proposition, if voted, a vote of attainder? To
consider a principle, we must try its nature, and see how far it will go; in
the present case he considered the effects of the principle contended for,
would be pernicious. If we advert to the nature of republican government, we
shall find that the censorial power is in the people over the government, and
not in the government over the people.
As he had confidence in the good sense and patriotism of the people, he
did not anticipate any lasting evil to result from the publications of these
societies; they will stand or fall by the public opinion; no line can be drawn
in this case. The law is the only rule of right; what is consistent with that
is not punishable; what is not contrary to that, is innocent, or at least not
censurable by the legislative body.
With respect to the body of the people, (whether the outrages have
proceeded from weakness or wickedness) what has been done, and will be done by
the Legislature will have a due effect. If the proceedings of the
government should not have an effect, will this declaration produce it? The
people at large are possessed of proper sentiments on the subject of the
insurrection — the whole continent reprobates the conduct of the
insurgents, it is not therefore necessary to take the extra step. The press he
believed would not be able to shake the confidence of the people in the
government. In a republic, light will prevail over darkness, truth over error
— he had undoubted confidence in this principle. If it be admitted that
the law cannot animadvert on a particular case, neither can we do it.
Governments are administered by men — the same degree of purity does not
always exist. Honesty of motives may at present prevail — but this affords
no assurance that it will always be the case — at a future period a
Legislature may exist of a very different complexion from the present; in this
view, we ought not by any vote of ours to give support to measures which now we
do not hesitate to reprobate. The gentleman from Georgia had anticipated him in
several remarks — no such inference can fairly be drawn as that we abandon
the President, should we pass over the whole business. The vote passed this
morning for raising a force to compleat the good work of peace order and
tranquility begun by the executive, speaks quite a different language from that
which has been used to induce an adoption of the principle contended for.
Mr. Madison adverted to precedents — none parallel to the subject
before us existed. The inquiry into the failure of the expedition under St.
Clair was not in point. In that case the house appointed a Committee of enquiry
into the conduct of an individual in the public service — the democratic
societies are not. He knew of nothing in the proceedings of the Legislature
which warrants the house in saying that institutions, confessedly not illegal,
were subjects of legislative censure.