Founding America: Documents from the Revolution to the Bill of Rights (91 page)

Supposing a bill of rights to be proper the articles which ought to compose it, admit of much discussion. I am inclined to think that
absolute
restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighbourhood by Britn: or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security against these evils is to remove the pretext for them. With regard to Monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our Governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.

I inclose a paper containing the late proceedings in Kentucky. I wish the ensuing Convention may take no step injurious to the character of the district, and favorable to the views of those who wish ill to the U. States. One of my late letters communicated some circumstances which will not fail to occur on perusing the objects of the proposed Convention in next month. Perhaps however there may be less connection between the two cases than at first one is ready to conjecture. I am Dr. Sir with the sincerest esteem and af fectn. Yours,

 

Js. MADISON JR

PHILADELPHIA DEC. 8, 1788

DEAR SIR

This will be handed to you by Mr. Governeur Morris who will embark in a few days for Havre, from whence he will proceed immediately to Paris. He is already well known to you by character; and as far as there may be a defect of personal acquaintance I beg leave to supply it by this introduction.

My two last were of Ocr. 8 and l7th. They furnished a State of our affairs as they then stood. I shall here add the particulars of most consequence, which have since taken place, remembering however that many details will be most conveniently gathered from the conversation of Mr. Morris who is thoroughly possessed of American transactions.

Notwithstanding the formidable opposition made to the new federal government, first in order to prevent its adoption, and since in order to place its administration in the hands of disaffected men, there is now both a certainty of its peaceable commencement in March next, and a flattering prospect that it will be administred by men who will give it a fair trial. General Washington will certainly be called to the Executive department. Mr. Adams who is pledged to support him
⁸⁵
will probably be the vice president. The enemies to the Government, at the head and the most inveterate of whom, is Mr. Henry are laying a train for the election of Governour Clinton, but it cannot succeed unless the federal votes be more dispersed than can well happen. Of the seven States which have appointed their Senators, Virginia alone will have anti-federal members in that branch. Those of N. Hampshire are President Langdon and Judge Bartlett, of Massachusetts Mr. Strong and Mr. Dalton, of Connecticut Docr. Johnson and Mr. Elseworth, of N. Jersey Mr. Patterson and Mr. Elmer, of Penna. Mr. R. Morris and Mr. McClay, of Delaware Mr. Geo: Reed and Mr. Bassett, of Virginia Mr. R. H. Lee and Col. Grayson. Here is already a majority of the ratifying States on the side of the Constitution. And it is not doubted that it will be reinforced by the appointments of Maryland, S. Carolina and Georgia. As one branch of the Legislature of N. York is attached to the Constitution, it is not improbable that one of the Senators from that State also will be added to the majority

In the House of Representatives the proportion of antifederal members will of course be greater, but can not if present appearances are to be trusted amount to a majority or even a very formidable minority. The election for this branch has taken place as yet no where except in Penna. and here the returns are not yet come in from all the Counties. It is certain however that seven out of the eight, and probable that the whole eight representatives will bear the federal stamp. Even in Virginia where the enemies to the Government form
of the legislature it is computed that more than half the number of Representatives, who will be elected by the people, formed into districts for the purpose, will be of the same stamp. By some it is computed that 7 out of the 10 allotted to that State will be opposed to the politics of the present Legislature.

The questions which divide the public at present relate 1. to the extent of the amendments that ought to be made to the Constitution, 2. to the mode in which they ought to be made. The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty, without abridging the sum of power transferred from the States to the general Government, or altering previous to trial, the particular structure of the latter and are fixed in opposition to the risk of another Convention, whilst the purpose can be as well answered, by the other mode provided for introducing amendments. Those who have opposed the Constitution, are on the other hand, zealous for a second Convention, and for a revisal which may either not be restrained at all, or extend at least as far as alterations have been proposed by any State. Some of this class are, no doubt, friends to an effective Government, and even to the substance of the particular Government in question. It is equally certain that there are others who urge a second Convention with the insidious hope of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself. If the first Congress embrace the policy which circumstances mark out, they will not fail to propose of themselves, every desireable safeguard for popular rights; and by thus separating the well meaning from the designing opponents fix on the latter their true character, and give to the Government its due popularity and stability....

PARIS MAR. 15, 1789

DEAR SIR

I wrote you last on the 12th. of Jan. since which I have received yours of Octob. 17. Dec. 8. and 12. That of Oct. 17. came to hand only Feb. 23. How it happened to be four months on the way, I cannot tell, as I never knew by what hand it came. Looking over my letter of Jan. 12th. I remark an error of the word ‘probable’ instead of ‘improbable,’ which doubtless however you had been able to correct. Your thoughts on the subject of the Declaration of rights in the letter of Oct. 17. 1 have weighed with great satisfaction. Some of them had not occurred to me before, but were acknoleged just in the moment they were presented to my mind. In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity. In fact what degree of confidence would be too much for a body composed of such men as Wythe, Blair, and Pendleton? On characters like these the ‘civium ardor prava jubentium’ would make no impression. I am happy to find that on the whole you are a friend to this amendment. The Declaration of rights is like all other human blessings alloyed with some inconveniences, and not accomplishing fully it’s object. But the good in this instance vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have been raised. 1. That the rights in question are reserved by the manner in which the federal powers are granted. Answer. A constitutive act may certainly be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes: and if it goes to all material points nothing more is wanting. In the draught of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed: but the deficiencies would have been supplied by others in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new federal constitution. This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild submitted to them. 2. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can. 3. The limited powers of the federal government and jealousy of the subordinate governments afford a security which exists in no other instance. Answer. The first member of this seems resolvable into the 1st. objection before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view it is necessary to the federal government also: as by the same text they may try the opposition of the subordinate governments. 4. Experience proves the inefficacy of a bill of rights. True. But tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less.

There is a remarkeable difference between the characters of the Inconveniencies which attend a Declaration of rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in it’s useful exertions. But the evil of this is shortlived, moderate, and reparable. The inconveniencies of the want of a Declaration are permanent, afflicting and irreparable: they are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it’s turn, but it will be at a remote period. I know there are some among us who would now establish a monarchy. But they are inconsiderable in number and weight of character. The rising race are all republicans. We were educated in royalism: no wonder if some of us retain that idolatry still. Our young people are educated in republicanism. An apostacy from that to royalism is unprecedented and impossible.

I am much pleased with the prospect that a declaration of rights will be added: and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it....

TH: JEFFERSON

PARIS SEPT. 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 would wish to develope a little more than is practicable in the hurry of the moment of making up general dispatches.

The question Whether one generation of men has a right to bind another, seems never to have been started [stated?] 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 it’s lands in severality, it will be taken by the first occupants. 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 any natural right, but by a law of the society of which they are members, and to which they are subject. Then no man can, by
natural right
, oblige the lands he occupied, or the persons who succeed him in that occupation, to the paiment 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 would be the reverse of our principle.