Th: Jefferson.
LETTER CXVII.—TO JAMES MADISON, December 20, 1787
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 24th, 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 ciphered 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 Burke’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 only of operations in the cabinet, and these 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 should 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 representitives[sp.] 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 of 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 the other way, that as most of the States had preserved with jealousy this sacred palladium of liberty, those who 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 maybe 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 what no just government should refuse, or rest on inference.