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LETTER X.—TO JAMES MADISON, August 28,1789

TO JAMES MADISON.

Paris, August 28,1789.

Dear Sir,

My last to you was of July the 22nd. Since that, I have received yours of May the 27th, June 13th and 30th. The tranquillity of the city has not been disturbed since my last. Dissensions between the French and Swiss guards occasioned some private combats, in which five or six were killed. These dissensions are made up. The want of bread for some days past has greatly endangered the peace of the city. Some get a little, some none at all. The poor are the best served, because they besiege perpetually the doors of the bakers. Notwithstanding this distress, and the palpable impotence of the city administration to furnish bread to the city, it was not till yesterday, that general leave was given to the bakers to go into the country and buy flour for themselves, as they can. This will soon relieve us, because the wheat harvest is well advanced.’ Never was there a country where the practice of governing too much, had taken deeper root and done more mischief. Their declaration of rights is finished. If printed in time, I will enclose a copy with this. It is doubtful whether they will now take up the finance or the constitution first. The distress for money endangers every thing. No taxes are paid, and no money can be borrowed. Mr. Necker was yesterday to give in a memoir to the Assembly, on this subject. I think they will give him leave to put into execution any plan he pleases, so as to debarrass themselves of this, and take up that of the constitution. No plan is yet reported; but the leading members (with some small difference of opinion) have in contemplation the following. The executive power in a hereditary King, with a negative on laws, and power to dissolve the legislature; to be considerably restrained in the making of treaties, and limited in his expenses. The legislative in a House of Representatives. They propose a Senate also, chosen on the plan of our federal Senate, by the Provincial Assemblies, but to be for life, of a certain age, (they talk of forty years), and certain wealth (four or five hundred guineas a year), but to have no other power as to laws but to remonstrate against them to the representatives, who will then determine their fate by a simple majority. This you will readily perceive is a mere council of revision, like that of New York, which, in order to be something, must form an alliance with the King, to avail themselves of his veto. The alliance will be useful to both, and to the nation. The representatives to be chosen every two or three years. The judiciary system is less prepared than any other part of the plan; however, they will abolish the parliaments, and establish an order of judges and justices, general and provincial, a good deal like ours, with trial by jury in criminal cases certainly, perhaps also in civil. The provinces will have Assemblies for their provincial government, and the cities a municipal body for municipal government, all founded on the basis of popular election. These subordinate governments, though completely dependent on the general one, will be intrusted with almost the whole of the details which our State governments exercise. They will have their own judiciary, final in all but great cases, the executive business will principally pass through their hands, and a certain local legislature will be allowed them. In short, ours has been professedly their model, in which such changes are made as a difference of circumstances rendered necessary, and some others neither necessary nor advantageous, but into which men will ever run, when versed in theory and new in the practice of government, when acquainted with man only as they see him in their books and not in the world. This plan will undoubtedly undergo changes in the Assembly, and the longer it is delayed, the greater will be the changes; for that Assembly, or rather the patriotic part of it, hooped together heretofore by a common enemy, are less compact since their victory. That enemy (the civil and ecclesiastical aristocracy) begins to raise its head. The lees, too, of the patriotic party, of wicked principles and desperate fortunes, hoping to pillage something in the wreck of their country, are attaching themselves to the faction of the Duke of Orleans: that faction is caballing with the populace, and intriguing at London, the Hague, and Berlin, and have evidently in view the transfer of the crown to the Duke of Orleans. He is a man of moderate understanding, of no principle, absorbed in low vice, and incapable of abstracting himself from the filth of that, to direct any thing else. His name and his money, therefore, are mere tools in the hands of those who are duping him.

They may produce a temporary confusion, and even a temporary civil war, supported, as they will be, by the money of England; but they cannot have success ultimately. The King, the mass of the substantial people of the whole country, the army, and the influential part of the clergy, form a firm phalanx which must prevail. Should those delays which necessarily attend the deliberations of a body of one thousand two hundred men, give time to this plot to ripen and burst, so as to break up the Assembly before any thing definitive is done, a constitution, the principles of which are pretty well settled in the minds of the Assembly, will be proposed by the national militia, (*****) urged by the individual members of the Assembly, signed by the King and supported by the nation, to prevail till circumstances shall permit its revision and more regular sanction. This I suppose the pis aller of their affairs, while their probable event is a peaceable settlement of them. They fear a war from England, Holland, and Prussia. I think England will give money, but not make war. Holland would soon be afire, internally, were she to be embroiled in external difficulties. Prussia must know this, and act accordingly.

It is impossible to desire better dispositions towards us, than prevail in this Assembly. Our proceedings have been viewed as a model for them on every occasion; and though in the heat of debate men are generally disposed to contradict every authority urged by their opponents, ours has been treated like that of the Bible, open to explanation, but not to question. I am sorry that in the moment of such a disposition, any thing should come from us to check it. The placing them on a mere footing with the English, will have this effect. When of two nations, the one has engaged herself in a ruinous war for us, has spent her blood and money to save us, has opened her bosom to us in peace, and received us almost on the footing of her own citizens, while the other has moved heaven, earth, and hell to exterminate us in war, has insulted us in all her councils in peace, shut her doors to us in every part where her interests would admit it, libelled us in foreign nations, endeavored to poison them against the reception of our most precious commodities; to place these two nations on a footing, is to give a great deal more to one than to the other, if the maxim be true, that to make unequal quantities equal, you must add more to one than the other. To say, in excuse, that gratitude is never to enter into the motives of national conduct, is to revive a principle which has been buried for centuries with its kindred principles of the lawfulness of assassination, poison, perjury, &c. All of these were legitimate principles in the dark ages which intervened between ancient and modern civilization, but exploded and held in just horror in the eighteenth century. I know but one code of morality for men, whether acting singly or collectively. He who says I will be a rogue when I act in company with a hundred others, but an honest man when I act alone, will be believed in the former assertion, but not in the latter. I would say with the poet, ‘Hie niger est; hunc tu, Romane, caveto.’ If the morality of one man produces a just line of conduct in him, acting individually, why should not the morality of one hundred men produce a just line of conduct in them, acting together? But I indulge myself in these reflections because my own feelings run me into them; with you they were always acknowledged. Let us hope that our new government will take some other occasion to show, that they mean to proscribe no virtue from the canons of their conduct with other nations. In every other instance, the new government has ushered itself to the world as honest, masculine, and dignified. It has shown genuine dignity, in my opinion, in exploding adulatory titles; they are the offerings of abject baseness, and nourish that degrading vice in the people.

I must now say a word on the declaration of rights, you have been so good as to send me. I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me. Article 4. The people shall not be deprived of their right to speak, to write, or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property, or reputation of others, or affecting the peace of the confederacy with foreign nations. Article 7. All facts put in issue before any judicature, shall be tried by jury, except, 1. in cases of admiralty jurisdiction, wherein a foreigner shall be interested; 2. in cases cognizable before a court martial, concerning only the regular-officers and soldiers of the United States, or members of the militia in actual service in time of war or insurrection; and 3. in impeachments allowed by the constitution. Article 8. No person shall be held in confinement more than – days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than – days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than – hours in any place at a greater distance than – miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than – miles distant from the State or encampment of enemies or of insurgents. Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding – years, but for no longer term, and no other purpose. Article 10. All troops of the United States shall stand ipso facto disbanded, at the expiration of the term for which their pay and subsistence shall have been last voted by Congress, and all officers and soldiers, not natives of the United States, shall be incapable of serving in their armies by land, except during a foreign war. These restrictions I think are so guarded, as to hinder evil only. However, if we do not have them now, I have so much confidence in my countrymen, as to be satisfied that we shall have them as soon as the degeneracy of our government shall render them necessary.

I have no certain news of Paul Jones. I understand only, in a general way, that some persecution on the part of his officers occasioned his being called to Petersburg, and that though protected against them by the Empress, he is not yet restored to his station. Silas Deane is coming over to finish his days in America, not having one sous to subsist on, elsewhere. He is a wretched monument of the consequences of a departure from right. I will, before my departure, write Colonel Lee fully the measures I pursued to procure success in his business, and which as yet offer little hope; and I shall leave it in the hands of Mr. Short to be pursued, if any prospect opens on him. I propose to sail from Havre as soon after the first of October as I can get a vessel; and shall consequently leave this place a week earlier than that. As my daughters will be with me, and their baggage somewhat more than that of mere voyageures, I shall endeavor, if possible, to obtain a passage for Virginia directly. Probably I shall be there by the last of November. If my immediate attendance at New York should be requisite for any purpose, I will leave them with a relation near Richmond, and proceed immediately to New York. But as I do not foresee any pressing purpose for that journey immediately on my arrival, and as it will be a great saving of time, to finish at once in Virginia, so as to have no occasion to return there after having once gone on to the northward, I expect to proceed to my own house directly. Staying there two months (which I believe will be necessary), and allowing for the time I am on the road, I may expect to be at New York in February, and to embark from thence or some eastern port. You ask me if I would accept any appointment on that side of the water? You know the circumstances which led me from retirement, step by step, and from one nomination to another, up to the present. My object is a return to the same retirement. Whenever, therefore, I quit the present, it will not be to engage in any other office, and most especially any one which would require a constant residence from home. The books I have collected for you will go off for Havre in three or four days, with my baggage. From that port, I shall try to send them by a direct occasion to New York.

I am, with great and sincere esteem, Dear Sir, your affectionate friend and servant,

Th: Jefferson.

P. S. I just now learn that Mr. Necker proposed yesterday to the National Assembly a loan of eighty millions, on terms more tempting to the lender than the former, and that they approved it, leaving him to arrange the details, in order that they might occupy themselves at once about the constitution. T. J.

LETTER XI.—TO JAMES MADISON, September 6, 1789

TO JAMES MADISON.

Paris, September 6, 1789.

Dear Sir,

I sit down to write to you, without knowing by what occasion I shall send my letter. I do it, because a subject comes into my head, which I wrould wish to develope[sp.] a little more than is practicable in the hurry of the moment of making up general despatches.

The question, whether one generation of men has a right to bind another, seems never to have been started either on this, or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. The course of reflection in which we are immersed here, on the elementary principles of society, has presented this question to my mind; and that no such obligation can be so transmitted, I think very capable of proof. I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living: that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society. If the society has formed no rules for the appropriation of its lands in severalty, it will be taken by the first occupants, and these will generally be the wife and children of the decedent. If they have formed rules of appropriation, those rules may give it to the wife and children, or to some one of them, or to the legatee of the deceased. So they may give it to his creditor.

But the child, the legatee, or creditor, takes it not by natural right, but by a law of the society of which he is a member, and to which he is subject. Then, no man can, by natural right, oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him. For if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come; and then the lands would belong to the dead, and not to the living, which is the reverse of our principle.

What is true of every member of the society individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals. To keep our ideas clear when applying them to a multitude, let us suppose a whole generation of men to be born on the same day, to attain mature age on the same day, and to die on the same day, leaving a succeeding generation in the moment of attaining their mature age, all together. Let the ripe age be supposed of twenty-one years, and their period of life thirty-four years more, that being the average term given by the bills of mortality to persons of twenty-one years of age. Each successive generation would, in this way, come and go off the stage at a fixed moment, as individuals do now. Then I say, the earth belongs to each of these generations during its course, fully and in its own right. The second generation receives it clear of the debts and incumbrances of the first, the third of the second, and so on. For if the first could charge it with a debt, then the earth would belong to the dead and not to the living generation. Then no generation can contract debts greater than may be paid during the course of its own existence. At twenty-one years of age, they may bind themselves and their lands for thirty-four years to come; at twenty-two, for thirty-three; at twenty-three, for thirty-two; and at fifty-four, for one year only; because these are the terms of life which remain to them at the respective epochs. But a material difference must be noted, between the succession of an individual and that of a whole generation. Individuals are parts only of a society, subject to the laws of the whole. These laws may appropriate the portion of land occupied by a decedent, to his creditor rather than to any other, or to his child, on condition he satisfies the creditor. But when a whole generation, that is, the whole society, dies, as in the case we have supposed, and another generation or society succeeds, this forms a whole, and there is no superior who can give their territory to a third society, who may have lent money to their predecessors, beyond their faculties of paying. What is true of generations succeeding one another at fixed epochs, as has been supposed for clearer conception, is true for those renewed daily, as in the actual course of nature. As a majority of the contracting generation will continue in being thirty-four years, and a new majority will then come into possession, the former may extend their engagements to that term, and no longer. The conclusion, then, is, that neither the representatives of a nation, nor the whole nation itself assembled, can validly engage debts beyond what they may pay in their own time, that is to say, within thirty-four years from the date of the engagement.

To render this conclusion palpable, suppose that Louis the XIV. and XV. had contracted debts in the name of the French nation, to the amount of ten thousand milliards, and that the whole had been contracted in Holland. The interest of this sum would be five hundred milliards, which is the whole rent-roll or nett[sp.] proceeds of the territory of France. Must the present generation of men have retired from the territory in which nature produces them, and ceded it to the Dutch creditors? No; they have the same rights over the soil on which they were produced, as the preceding generations had. They derive these rights not from them, but from nature. They, then, and their soil are, by nature, clear of the debts of their predecessors. To present this in another point of view, suppose Louis XV. and his cotemporary generation had said to the money-lenders of Holland, Give us money, that we may eat, drink, and be merry in our day; and on condition you will demand no interest till the end of thirty-four years, you shall then, for ever after, receive an annual interest of fifteen per cent. The money is lent on these conditions, is divided among the people, eaten, drunk, and squandered. Would the present generation be obliged to apply the produce of the earth and of their labor, to replace their dissipations? Not at all.

I suppose that the received opinion, that the public debts of one generation devolve on the next, has been suggested by our seeing, habitually, in private life, that he who succeeds to lands is required to pay the debts of his predecessor; without considering that this requisition is municipal only, not moral, flowing from the will of the society, which has found it convenient to appropriate the lands of a decedent on the condition of a payment of his debts: but that between society and society, or generation and generation, there is no municipal obligation, no umpire, but the law of nature.

The interest of the national debt of France being, in fact, but a two thousandth part of its rent-roll, the payment of it is practicable enough; and so becomes a question merely of honor or of expediency. But with respect to future debts, would it not be wise and just for that nation to declare in the constitution they are forming, that neither the legislature nor the nation itself, can validly contract more debt than they may pay within their own age, or within the term of thirty-four years? And that all future contracts shall be deemed void, as to what shall remain unpaid at the end of thirty-four years from their date? This would put the lenders, and the borrowers also, on their guard. By reducing, too, the faculty of borrowing within its natural limits, it would bridle the spirit of war, to which too free a course has been procured by the inattention of money-lenders to this law of nature, that succeeding generations are not responsible for the preceding.

On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force and not of right. It may be said that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.

This principle, that the earth belongs to the living and not to the dead, is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions, whether the nation may change the descent of lands holden in tail; whether they may change the appropriation of lands given anciently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity whether they may abolish the charges and privileges attached on lands, including the whole catalogue, ecclesiastical and feudal; it goes to hereditary offices, authorities, and jurisdictions, to hereditary orders, distinctions, and appellations, to perpetual monopolies in commerce, the arts, or sciences, with a long train of et ceteras; and it renders the question of reimbursement, a question of generosity and not of right. In all these cases, the legislature of the day could authorize such appropriations and establishments for their own time, but no longer; and the present holders, even where they or their ancestors have purchased, are in the case of bonâ fide purchasers of what the seller had no right to convey.

Turn the subject in your mind, my Dear Sir, and particularly as to the power of contracting debts, and develope it with that cogent logic which is so peculiarly yours. Your station in the councils of our country gives you an opportunity of producing it to public consideration, of forcing it into discussion. At first blush it may be laughed at, as the dream of a theorist; but examination will prove it to be solid and salutary. It would furnish matter for a fine preamble to our first law for appropriating the public revenue: and it will exclude, at the threshold of our new government, the ruinous and contagious errors of this quarter of the globe, which have armed despots with means which nature does not sanction, for binding in chains their fellow-men. We have already given, in example, one effectual check to the dog of war, by transferring the power of declaring war from the executive to the legislative body, from those who are to spend, to those who are to pay. I should be pleased to see this second obstacle held out by us also, in the first instance. No nation can make a declaration against the validity of long contracted debts, so disinterestedly as we, since we do not owe a shilling which will not be paid, principal and interest, by the measures you have taken, within the time of our own lives. I write you no news, because when an occasion occurs, I shall write a separate letter for that.

I am always, with great and sincere esteem, Dear Sir, your affectionate friend and servant,

Th: Jefferson.