I have received your favor of April 22d, with the two volumes bearing the name of Condorcet. If the length of time they remained in your hands had been in the least inconvenient to me, which was not the case, the debt would have been overpaid by the interesting observations into which you were led by your return of them.

The idea of a Government "in one centre," as expressed and espoused by this Philosopher and his theoretic associates, seems now to be every where exploded. And the views which you have given of its fallacy will be a powerful obstacle to its revival anywhere. It is remarkable that in each of our States which approached nearest to the theory changes were soon made, assimilating their constitution to the examples of the other States, which had placed the powers of Government in different depositories, as means of controlling the impulse and sympathy of the passions, and affording to reason better opportunities of asserting its prerogatives.

The great question now to be decided, and it is one in which humanity is more deeply interested than in any political experiment yet made, is, whether checks and balances sufficient for the purposes of order, justice, and the general good, may not be created by a proper division and distribution of power among different bodies, differently constituted, but all deriving their existence from the elective principle, and bound by a responsible tenure of their trusts. The experiment is favored by the extent of our Country, which prevents the contagion of evil passions; and by the combination of the federal with the local systems of Government, which multiplies the divisions of power, and the mutual checks by which it is to be kept within its proper limits and direction. In aid of these considerations much is to be hoped from the force of opinion and habit, as these ally themselves with our political institutions. I am running, however, into reflections, without recollecting that all such must have fallen within the comprehensive reviews which your mind has taken of the principles of our Government, and the prospects of our Country.




Since my last which was of the 18th. of May I have recd. your very agreeable favor of the 28th. of Octobr. I began to fear it had miscarried. Your reflections on the idle poor of Europe, form a valuable lesson to the Legislators of every Country, and particularly of a new one. I hope you will enable yourself before you return to America to compare with this description of people in France the Condition of the indigent part of other communities in Europe where the like causes of wretchedness exist in a less degree. I have no doubt that the misery of the lower classes will be found to abate wherever the Government assumes a freer aspect, & the laws favor a subdivision of property. Yet I suspect that the difference will not fully account for the comparative comfort of the Mass of people in the United States. Our limited population has probably as large a share in producing this effect as the political advantages which distinguish us. A certain degree of misery seems inseparable from a high degree of populousness. If the lands in Europe which are now dedicated to the amusement of the idle rich, were parcelled out among the idle poor, I readily conceive the happy revolution which would be experienced by a certain proportion of the latter. But still would there not remain a great proportion unrelieved? No problem in political Oeconomy has appeared to me more puzzling than that which relates to the most proper distribution of the inhabitants of a Country fully peopled. Let the lands be shared among them ever so wisely, & let them be supplied with labourers ever so plentifully; as there must be a great surplus of subsistence, there will also remain a great surplus of inhabitants, a greater by far than will be employed in cloathing both themselves & those who feed them, and in administering to both, every other necessary & even comfort of life. What is to be done with this surplus? Hitherto we have seen them distributed into Manufacturers of superfluities, idle proprietors of productive funds, domestics, soldiers, merchants, mariners, and a few other less numerous classes. All these classes notwithstanding have been found insufficient to absorb the redundant members of a populous society; and yet a reduction of most of those classes enters into the very reform which appears so necessary & desireable. From a more equal partition of property, must result a greater simplicity of manners, consequently a less consumption of manufactured superfluities, and a less proportion of idle proprietors & domestics. From a juster Government must result less need of soldiers either for defence agst. dangers from without or disturbances from within. The number of merchants must be inconsiderable under any modification of Society; and that of Mariners will depend more on geographical position, than on the plan of legislation. But I forget that I am writing a letter not a dissertation.




Your favor of the 9th. of Jany. inclosing one of Sepr. 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 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, in [sic] 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 interregnum?

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 satisfyed 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 & the living is to see that the debits against the latter do not exceed the advances made by the former. Few of the incumbrances 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 of property would become absolutely defunct; and the most violent struggles be generated between those interested in reviving and those interested in new-modelling 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 agst. oppression, would here render an opportunity of rejecting, an insecure provision agst. anarchy. Add, that the possibility of an event so hazardous to the rights of property could not fail to depreciate its value; that the approach of the crisis would increase this effect; that the frequent return of periods superseding all the obligations depending on antecedent laws & usages, must by 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 interprizing 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 conveniency. 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 presupposses 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 misapplied, 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 accomodated 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 & feared from weakness in Government, and licentiousness in the people, have turned the attention more towards the means of strengthening the former, than of 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 be still more enlightened before many of the sublime truths which are seen thro' the medium of Philosophy, become visible to the naked eye of the ordinary Politician.




I found on my arrival here that certain ideas unfavorable to the Act of the Convention which had created difficulties in that body, had made their way into Congress. They were patronised cheifly by Mr. R. H. L. and Mr. Dane of Massts. It was first urged that as the new Constitution was more than an Alteration of the Articles of Confederation under which Congress acted, and even subverted these articles altogether, there was a Constitutional impropriety in their taking any positive agency in the work. The answer given was that the Resolution of Congress in Feby. had recommended the Convention as the best mean of obtaining a firm national Government; that as the powers of the Convention were defined by their Commissions in nearly the same terms with the powers of Congress given by the Confederation on the subject of alterations, Congress were not more restrained from acceding to the new plan, than the Convention were from proposing it. If the plan was within the powers of the Convention it was within those of Congress; if beyond those powers, the same necessity which justified the Convention would justify Congress; and a failure of Congress to Concur in what was done, would imply either that the Convention had done wrong in exceeding their powers, or that the Government proposed was in itself liable to insuperable objections; that such an inference would be the more natural, as Congress had never scrupled to recommend measures foreign to their Constitutional functions, whenever the Public good seemed to require it; and had in several instances, particularly in the establishment of the new Western Governments, exercised assumed powers of a very high & delicate nature, under motives infinitely less urgent than the present state of our affairs, if any faith were due to the representations made by Congress themselves, ecchoed by 12 States in the Union, and confirmed by the general voice of the People. An attempt was made in the next place by R. H. L. to amend the Act of the Convention before it should go forth from Congress. He proposed a bill of Rights--provision for juries in civil cases & several other things corresponding with the ideas of Col. M. He was supported by Mr. Me-- Smith of this State. It was contended that Congress had an undoubted right to insert amendments, and that it was their duty to make use of it in a case where the essential guards of liberty had been omitted. On the other side the right of Congress was not denied, but the inexpediency of exerting it was urged on the following grounds. 1. that every circumstance indicated that the introduction of Congress as a party to the reform, was intended by the States merely as a matter of form and respect. 2. that it was evident from the contradictory objections which had been expressed by the different members who had animadverted on the plan, that a discussion of its merits would consume much time, without producing agreement even among its adversaries. 3. that it was clearly the intention of the States that the plan to be proposed should be the act of the Convention with the assent of Congress, which could not be the case, if alterations were made, the Convention being no longer in existence to adopt them. 4. that as the Act of the Convention, when altered would instantly become the mere act of Congress, and must be proposed by them as such, and of course be addressed to the Legislatures, not conventions of the States, and require the ratification of thirteen instead of nine States, and as the unaltered act would go forth to the States directly from the Convention under the auspices of that Body--Some States might ratify one & some the other of the plans, and confusion & disappointment be the least evils that could ensue. These difficulties which at one time threatened a serious division in Congs. and popular alterations with the yeas & nays on the journals, were at length fortunately terminated by the following Resolution--"Congress having recd. the Report of the Convention lately assembled in Philada., Resold. unanimously that the said Report, with the Resolutions & letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a Convention of Delegates chosen in each State by the people thereof, in conformity to the Resolves of the Convention made & provided in that case." Eleven States were present, the absent ones R.I. & Maryland. A more direct approbation would have been of advantage in this & some other States, where stress will be laid on the agency of Congress in the matter, and a handle taken by adversaries of any ambiguity on the subject. With regard to Virginia & some other States, reserve on the part of Congress will do no injury. The circumstance of unaninimity must be favorable every where.




I have been this day honoured with your favor of the 10th. instant, under the same cover with which is a copy of Col. Mason's objections to the Work of the Convention. . . . What he means by the dangerous tendency of the Judiciary I am at some loss to comprehend. It never was intended, nor can it be supposed that in ordinary cases the inferior tribunals will not have final jurisdiction in order to prevent the evils of which he complains. The great mass of suits in every State lie between Citizen & Citizen, and relate to matters not of federal cognizance. . . . What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committe[e] of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution. This objection surely was not brought forward in the Convention, or it wd. have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded. Were it allowed the weight which Col. M. may suppose it deserves, it would remain to be decided whether it be candid to arraign the Convention for omissions which were never suggested to them--or prudent to vindicate the dissent by reasons which either were not previously thought of, or must have been wilfully concealed.