Prophetic Letter from Thomas Jefferson to James Madison; Paris Dec 20, 1787

Thomas Jefferson concerning Separation of Powers

Thomas Jefferson concerning Separation of Powers

FROM THOMAS JEFFERSON TO JAMES MADISON.

Paris, December 20, 1787.

Dear Sir,

My last to you was of October the 8th, by the Count de Moustier. Yours of July the 18th, September the 6th, and October the 25th, were successively received, yesterday, the day before, and three or four days before that. I have only had time to read the letters; the printed papers communicated with them, however interesting, being obliged to lie over till I finish my despatches for the packet, which despatches must go from hence the day after to-morrow. I have much to thank you for, first and most for the cyphered paragraph respecting myself. These little informations are very material towards forming my own decisions. I would be glad even to know when any individual member thinks I have gone wrong in any instance. If I know myself it would not excite ill blood in me, while it would assist to guide my conduct, perhaps, to justify it, and to keep me to my duty alert. I must thank you, too, for the information in Thomas Burk’s case; though you will have found, by a subsequent letter, that I have asked of you a further investigation of that matter. It is to gratify the lady who is at the head of the convent wherein my daughters are, and who, by her attachment and attention to them, lays me under great obligations. I shall hope, therefore, still to receive from you the result of all the further inquiries my second letter had asked. The parcel of rice, which you informed me had miscarried, accompanied my letter to the delegates of South Carolina. Mr. Bourgoin was to be the bearer of both, and both were delivered together into the hands of his relation here, who introduced him to me, and who, at a subsequent moment, undertook to convey them to Mr. Bourgoin. This person was an engraver, particularly recommended to Dr. Franklin and Mr. Hopkinson. Perhaps he may have mislaid the little parcel of rice among his baggage. I am much pleased that the sale of western lands is so successful. I hope they will absorb all the certificates of our domestic debt speedily, in the first place, and that then, offered for cash, they will do the same by our foreign ones.

The season admitting of operations in the Cabinet, and those being in a great measure secret, I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the constitution proposed by our Convention.

I like much the general idea of framing a Government which would go on of itself peaceably, without needing continual recurrence to the State Legislatures. I like the organization of the Government into legislative, judiciary, and executive. I like the power given the Legislature to levy taxes, and for that reason solely, I approve of the greater house being chosen by the people directly. For, though I think a house so chosen, will be very far inferior to the present Congress, will be very illy qualified to legislate for the Union, for foreign nations, &c, yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little States, of the latter to equal, and the former to proportional influence. I am much pleased, too, with the substitution of the method of voting by persons instead of that of voting by States; and I like the negative given to the Executive, conjointly with a third of either House, though I should have liked it better had the judiciary been associated for that purpose, or invested separately with a similar power. There are other good things of less moment.

I will now tell you what I do not like: First, the omission of a bill of rights, providing clearly and without the aid of sophism for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land, and not by the laws of nations. To say, as Mr. Wilson does, that a bill of rights was not necessary, because all is reserved in the case of the General Government which is not given, while in the particular ones all is given which is not reserved, might do for the audience to which it was addressed, but it is surely a gratis dictum, the reverse of which might just as well be said; and it is opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present Confederation, which had made the reservation in express terms. It was hard to conclude, because there has been a want of uniformity among the States as to the cases triable by jury, because some have been so incautious as to dispense with this mode of trial in certain cases, therefore the more prudent States shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded by the other way, that as most of the States had preserved with jealousy this sacred palladium of liberty, those which had wandered should be brought back to it; and to have established general right rather than general wrong. For I consider all the ill as established which may be established. I have a right to nothing which another has a right to take away; and Congress will have a right to take away trials by jury in all civil cases. Let me add, that a bill of rights is what the people are entitled to against every Government on earth, general or particular, and which no just Government should refuse, or rest on inference. Roman Emperors, the Popes while they were of any importance, the German Emperors till they became hereditary in practice, the Kings of Poland, the Deys of the Ottoman dependencies. It may be said that if elections are to be attended with these disorders, the less frequently they are repeated the better. But experience says, that to free them from disorder they must be rendered less interesting by a necessity of change. No foreign Power, nor domestic party, will waste their blood and money to elect a person who must go out at the end of a short period. The power of removing every fourth year by the vote of the people is a power which they will not exercise, and if they were disposed to exercise it, they would not be permitted. The King of Poland is removable every day by the Diet, but they never remove him. Nor would Russia, the Emperor, Sic, permit them to do it. Smaller objections are, the appeals on matters of fact as well as law, and the binding all persons, legislative, executive, and judiciary, by oath to maintain that Constitution. I do not pretend to decide what would be the best method of procuring the establishment of the manifold good things in this Constitution, and of getting rid of the bad. Whether by adopting it in hopes of future amendments; or, after it shall have been only weighed and canvassed by the people, after seeing the parts they generally dislike and those they generally approve, to say to them: “We see now ‘what you wish. You are willing to give to your Federal Government such and such powers, but you wish at the same time to have ‘such and such fundamental rights secured to you, and certain sources ‘of convulsion taken away. Be it so. Send together your deputies ‘again. Let them establish your fundamental rights by a sacrosanct ‘declaration, and let them pass the parts of the Constitution you ‘have approved. These will give powers to your Federal Government sufficient for your happiness.”

The second feature I dislike, and strongly dislike, is the abandonment, in every instance, of the principle of rotation in office, and most particularly in the case of the President. Reason and experience tell us that the first magistrate will always be reelected, if he may be reelected. He is then an officer for life. This once observed, it becomes of so much consequence to certain nations to have a friend or a foe at the head of our affairs, that they will interfere with money and with arms. A Galloman or an Angloman will be supported by the nation he befriends. If once elected, and at a second or third election out-voted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of Government, be supported by the States voting for him, especially if they be the central ones, lying in a compact body themselves, and separating their opponents; and they will be aided by one nation in Europe, while the majority are aided by another. The election of a President of America, some years hence, will be much more interesting to certain nations of Europe than ever the election of a King of Poland was. Reflect on all the instances in history, ancient and modern, of the elective Monarchies, and say if they do not give foundation for my fears; the Roman Emperors, the Popes while they were of any importance, the German Emperors till they became hereditary in practice, the Kings of Poland, the Deys of the Ottoman dependencies. It may be said that if elections are to be attended with these disorders, the less frequently they are repeated the better. But experience says, that to free them from disorder, they must be rendered less interesting by a necessity of change. No foreign power, nor domestic party, will waste their blood and money to elect a person who must go out at the end of a short period. The power of removing every fourth year by the vote of the people, is a power which they will not exercise, and if the were disposed to exercise it, they would not be permitted. The king of Poland is removeable every day by the Diet, but they never remove him. Nor would Russia, the Emperor, &0. permit them to do it. Smaller objections are, the appeals on matters of fact as well as law; and the binding all persons, legislative, executive, and judiciary, by oath to maintain the constitution. I. do not pretend to decide what would be the best method of procuring the establishment of the manifold good things in this constitution, and of getting rid of the bad. Whether by adopting it in hopes of future amendments; or after it shall have been only weighed and canvassed by the people, after seeing the parts they generally dislike, and those . they generally approve, to say to them, ‘We see now what you wish. You are willing to give to your federal government such and such powers, but you wish, at the same time, to have such and such fundamental rights secured to you, and certain sources of convulsion taken away. Be it so. Send together your deputies again. Let them establish your fundamental rights by a sacro-sancl declaration, and let them pass the parts of the constitution you have approved. These will give powers to your federal government sufficient for your happiness.’

This is what might be said, and would probably produce a speedy, more perfect, and more permanent form of Government. At all events I hope you will not be discouraged from making other trials, if the present one should fail. We are never permitted to despair of the Commonwealth. I have thus told you freely which I like and what I dislike, merely as a matter of curiosity; for I know it is not in my power to offer matter of information to your judgment, which has been formed after hearing and weighing everything which the wisdom of man could offer on these subjects. I own I am not a friend to a very energetic Government. It is always oppressive. It places the governors, indeed, more at ease, at the expense of the people. The late rebellion in Massachusetts has given more alarm than I think it should have done. Calculate that one rebellion in thirteen States in the course of eleven years is but one for each State in a century and a half. No country should be as long without one. Nor will any degree of power in the hands of Government prevent insurrection. In England, where the hand of power is heavier than with us, there are seldom half a dozen years without an insurrection. In France, where it is still heavier, but less despotic, as Montesquieu supposes, than in some other countries, and where there are always two or three hundred thousand men ready to crush insurrections, there have been three in the course of the three years I have been here, in every one of which greater numbers were engaged than in Massachusetts, and a great deal more blood spilt. In Turkey, where the sole nod of the despot is death, insurrections are the events of every day. Compare again the ferocious depredations of their insurgents with the order, the moderation, and the almost self-extinguishment of ours; and say, finally, whether peace is best preserved by giving energy to the Government or information to the people. This last is the most certain and the most legitimate engine of government. Educate and inform the whole mass of the people. Enable them to see that it is their interest to preserve peace and order, and they will preserve them. And it requires no very high degree of education to convince them of this. They are the only sure reliance for the preservation of our liberty. After all, it is my principle that the will of the majority should prevail. If they approve the proposed Constitution in all its parts, I shall concur in it cheerfully, in hopes they will amend it whenever they shall find it works wrong. This reliance cannot deceive us as long as we remain virtuous; and I think we shall be so as long as agriculture is our principal object, which will be the case while there remain vacant lands in any part of America. When we get piled upon one another in large cities, as in Europe, we shall become corrupt as in Europe, and go to eating one another as they do there. I have tired you by this time with disquisitions which you have already heard repeated by others, a thousand and a thousand times, and therefore shall only add assurances of the esteem and attachment with which I have the honor to be, &c,

TH: JEFFERSON.

P. S. The instability of our laws is really an immense evil. I think it would be well to provide in our Constitution that there shall always be a twelvemonth between the engrossing a bill and passing it—that it should then be offered to its passage without changing a word; and that if circumstances should be thought to require a speedier passage, it should take two thirds of both Houses instead of a bare majority.

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