The Madison-Jefferson Exchange on the Ratification and the Bill of Rights – Part III

James Madison and Thomas Jefferson engaged in an exchange by mail for over two years in which they discussed the debate over what would become the Bill of Rights. This long discussion took place during three distinct periods of time: 1) during the Federalist-Antifederalist “out of doors” debates; 2) after the ratification of the Constitution but before the meeting of the First Congress; and 3) during the debate over what rights Congress would submit to the states for adoption.

Since the exchange took place in three distinct topical and chronological phases, we have decided to embed these letters alongside other documents and commentary that describe these three periods of time.

The Madison-Jefferson Exchange, Part I (October 1787 – July 1788)

The Madison-Jefferson Exchange, Part II (August 1788 – March 1789)

MADISON TO JEFFERSON
MARCH 29, 1789

It is not yet possible to ascertain precisely the complexion of the new Congress. A little time will be necessary to unveil it, and a little will probably suffice. With regard to the Constitution, it is pretty well decided that the disaffected party in the Senate amounts to two or three members only; and that in the other House it does not exceed a very small minority, some of which will also be restrained by the federalism of the States from which they come. Notwithstanding this character of the Body, I hope and expect that some conciliatory sacrifices will be made, in order to extinguish opposition to the system, or at least break the force of it, by detaching the deluded opponents from their designing leaders. With regard to the system of policy to which the Government is capable of rising, and by which its genius will be appreciated, I wait for some experimental instruction. Were I to advance a conjecture, it would be, that the predictions of an anti-democratic operation will be confronted with at least a sufficient number of the features which have marked the State Governments.

MADISON TO JEFFERSON
JUNE 30, 1789

The federal business has proceeded with a mortifying tardiness, chargeable in part on the incorrect draughts of Committees, and the prolixity of discussion incident to a public body, every member of which almost takes a positive agency, but principally resulting from the novelty and complexity of the subjects of Legislation. We are in a wilderness without a single footstep to guide us. Our successors will have an easier task, and by degrees they way will become smooth short and certain.…

Enclosed is a copy of sundry amendments to the Constitution lately proposed in the House of Representatives. Every thing of a controvertible nature that might endanger the concurrence of two-thirds of each House and three-fourths of the States was studiously avoided. This will account for the omission of several amendments which occur as proper. The subject will not be taken up till the revenue and Department bills are passed.”

Enclosed: Madison’s Draft of the Bill of Rights, June 8, 1789. (See Commentary on Madison; June 8 speech in the Five Dimensions of Development section.)

JEFFERSON TO MADISON
AUGUST 28, 1789

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.

Art. 4. ‘The people shall not be deprived or abridged 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. Art. 7. All facts put in issue before any judicature shall be tried by jury except 1. in cases cognizable before a court martial concerning only the regular officers and soldiers of the U.S. or members of the militia in actual service in time of war or insurrection, and 3. in impeachments allowed by the constitutions — Art. 8. No person shall be held in confinement more than — days after they shall have demanded and been refused a write of Hab. corp. y the judge appointed by law no more than — days after such writ. Shall have been served on the person holding him in confinement and no order given on due examination for his remaining discharge, no more than — hours in an place at a greater distance than — miles from the usual residence of some judge authorized to issue the writ of Hab. corp. nor shall that writ be suspended for any term exceeding one year nor in any place more than — miles distant from the station or encampment of enemies or insurgents. — Art. 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. — Art. 10. All troops of the U.S. 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 U.S. 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.

JEFFERSON TO MADISON
SEPTEMBER 6, 1789

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 consequence 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 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, or creditor takes it, not 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 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 would be 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 21. years of age. Each successive generation would, in this way, come on, 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 it’s course, fully, and in their own right. The 2d. generation receives it clear of the debts and encumbrances of the 1st. the 3d of the 2d. and so on. For if the 1st. could charge it with a debt, then the earth would belong to the dead and not the living generation. Then no generation can contract debts greater than may be paid during the course of it’s own existence. At 21. years of age they may bind themselves and their lands for 34. years to come: at 22. for 23: at 23. for 32 and at 54. for one year only; because these are the terms of life which remain to them at those 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 approbate the portion of land occupied by a decedent to his 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…

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 ancestor or testator: without considering that this requisition is municipal only, not moral; flowing from the wall of the society, which has found it convenient to appropriate lands, become vacant by the death of their occupant, 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. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another…

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 if the question is whether the nation may change the descent of lands held 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 and sciences; with a long train of et ceteras: and it renders the question of reimbursement of 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 bona fide purchasers of what the seller had no right convey.

Turn this subject in your mind, my dear Sir, and particularly as to the power of contracting debts; and develop it with that perspicuity and cogent logic so peculiarly yours. Your station in the councils of our country gives you an opportunity of producing it to public consideration, or forcing it into discussion. At first blush it may be rallied, as a theoretical speculation: 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 contagious and ruinous errors of this quarter of the globe, which have armed despots with means, not sanctioned by nature, 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 may not be paid with ease, principal and interest, within the time of our own lives.

MADISON TO JEFFERSON
FEBRUARY 4, 1790

Your favor of the 9th. of January enclosing one of Sept. last did not get to hand till a few days ago. The idea which the latter evolves is a great one, and suggests many interesting reflections to legislators; particularly when contracting and providing for the public debts. Whether it can be received in the extent your reasonings give it, is a question which I ought to turn more in my thoughts than I have yet been able to do, before I should be justified in making up a full opinion on it. My first thoughts though coinciding with many of yours, lead me to view the doctrine as not in all respects compatible with the course of human affairs. I will endeavor to sketch the grounds of my skepticism.

“As the earth belongs to the living, not to the dead, a living generation can bind itself only: In every society the will of the majority binds the whole: According to the laws of mortality, a majority of those ripe at any moment for the exercise of their will do not live beyond nineteen years. To that term then is limited the validity of every act of the Society; Nor within that limitation, can any declaration of the public will be valid which is not express.”

This I understand to be the outline of the argument.

The acts of a political Society may be divided into three classes.

1. The fundamental Constitution of the Government.
2. Laws involving stipulations which render them irrevocable at the will of the Legislature.
3. Laws involving no such irrevocable quality.

However applicable in Theory the doctrine may be to a Constitution, it seems liable in practice to some very powerful objections. Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interrogation?

In the 2d. class, exceptions at least to the doctrine seem to be requisite both in Theory and practice:

If the earth be the gift of nature to the living their title can extend to the earth in its natural State only. The improvements made by the dead form a charge against the living who take the benefit of them. This charge can no otherwise be satisfied than by executing the will of the dead accompanying the improvements.

Debts may be incurred for purposes which interest the unborn, as well as the living: such are debts for repelling a conquest, the evils of which descend through many generations. Debts may even be incurred principally for the benefit of posterity: such perhaps is the present debt of the U. States, which far exceeds any burdens which the present generation could well apprehend for itself. The term of 19. years might not be sufficient for discharging the debts in either of these cases.

There seems then to be a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another. Equity requires it. Mutual good is promoted by it. All that is indispensable in adjusting the account between the dead and the living is to see that the debits against the latter do not exceed the advances made by the former. Few of the encumbrances entailed on nations would bear a liquidation even on this principle.

The objections to the doctrine as applied to the 3d. class of acts may perhaps be merely practical. But in that view they appear to be of great force.

Unless such laws should be kept in force by new acts regularly anticipating the end of the term, all the rights depending on positive laws, that is, most of the rights if property would become absolutely defunct; and the most violent struggles be generated between those interested in reviving and those interested in new modeling the former state of property. Nor would events of this kind be improbable. The obstacles to the passage of laws which render a power to repeal inferior to an opportunity of rejecting, as a security against oppression, would here render an opportunity of rejecting an insecure provision against anarchy. Add, that the possibility of an event so hazardous to the rights of property could not fail to depreciate its value; that the frequent return of periods superseding all the obligations depending on antecedent laws and usages, must be weak[en]ing the reverence for those obligations, co-operate with motives to licentiousness already too powerful; and that the uncertainty incident to such a state of things would on one side discourage the steady exertions of industry produced by permanent laws, and on the other, give a disproportionate advantage to the more, over the less, sagacious and enterprising part of the Society.

I find no relief from these consequences, but in the received doctrine that a tacit assent may be given to established Constitutions and laws, and that this assent may be inferred, where no positive dissent appears. It seems less impracticable to remedy, by wise plans of Government, the dangerous operation of this doctrine, than to find a remedy for the difficulties inseparable from the other.

May it not be questioned whether it be possible to exclude wholly the idea of tacit assent, without subverting the foundation of civil Society?

On what principle does the voice of the majority bind the minority? It does not result I conceive from the law of nature, but from compact founded on convenience. A greater proportion might be required by the fundamental constitution of a Society if it were judged eligible. Prior then to the establishment of this principle, unanimity was necessary; and strict Theory at all times presupposes the assent of every member to the establishment of the rule itself. If this assent can not be given tacitly, or be not implied where no positive evidence forbids, persons born in Society would not on attaining ripe age be bound by acts of the Majority; and either a unanimous repetition of every law would be necessary on the accession of new members, or an express assent must be obtained from these to the rule by which the voice of the Majority is made the voice of the whole.

If the observations I have hazarded be not misapplies, it follows that a limitation of the validity of national acts to the computed life of a nation, is in some instances not required by Theory, and in others cannot be accommodated to practice. The observations are not meant however to impeach either the utility of the principle in some particular cases; or the general importance of it in the eye of the philosophical Legislator. On the contrary it would give me singular pleasure to see it first announced in the proceedings of the U. States, and always kept in their view, as a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors. But this is a pleasure which I have little hope of enjoying, The spirit of philosophical legislation has never reached some parts of the Union, and is by no means the fashion here, either within or without Congress. The evils suffered and feared from weakness in the Government, and the licentiousness in the people, have turned the attention more towards the means of strengthening the former than of the narrowing its extent in the minds of the latter. Besides this, it is so much easier to espy the little difficulties immediately incident to every great plan, than to comprehend its general and remote benefits, that our hemisphere must still be more enlightened before many of the sublime truths which are seen through the medium of Philosophy, become visible to the naked eye of the ordinary Politician. I have nothing to add at present but that I remain always and most affectionately Yours,