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Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 4
LETTER CLXXVIII.—TO JOSEPH C CABELL, February 3, 1824
TO JOSEPH C CABELL.
Monticello, February 3, 1824.
Dear Sir,
I am favored with your two letters of January the 26th and 29th, and am glad that yourself and the friends of the University are so well satisfied, that the provisos amendatory of the University Act are mere nullities. I had not been able to put out of my head the Algebraical equation, which was among the first of my college lessons, that a-a = 0. Yet I cheerfully arrange myself to your opinions. I did not suppose, nor do I now suppose it possible, that both Houses of the legislature should ever consent, for an additional fifteen thousand dollars of revenue, to set all the Professors and students of the University adrift: and if foreigners will have the same confidence which we have in our legislature, no harm will have been done by the provisos.
You recollect that we had agreed that the Visitors who are of the legislature should fix on a certain day of meeting, after the rising of the Assembly, to put into immediate motion the measures which this act was expected to call for. You will of course remind the Governor that a re-appointment of Visitors is to be made on the day following Sunday, the 29th of this month; and as he is to appoint the day of their first meeting, it would be well to recommend to him that which our brethren there shall fix on. It may be designated by the Governor as the third, fourth, &c. day after the rising of the legislature, which will give it certainty enough.
You ask what sum would be desirable for the purchase of books and apparatus. Certainly the largest you can obtain. Forty or fifty thousand dollars would enable us to purchase the most essential books of text and reference for the schools, and such an apparatus for Mathematics, Astronomy, and Chemistry, as may enable us to set out with tolerable competence, if we can, through the banks and otherwise, anticipate the whole sum at once.
I remark what you say on the subject of committing ourselves to any one for the Law appointment. Your caution is perfectly just. I hope, and am certain, that this will be the standing law of discretion and duty with every member of our board, in this and all cases. You know we have all, from the beginning, considered the high qualifications of our Professors, as the only means by which we can give to our institution splendor and pre-eminence over all its sister seminaries. The only question, therefore, we can ever ask ourselves, as to any candidate, will be, Is he the most highly qualified? The college of Philadelphia has lost its character of primacy by indulging motives of favoritism and nepotism, and by conferring the appointments as if the professorships were entrusted to them as provisions for their friends. And even that of Edinburgh, you know, is also much lowered from the same cause. We are next to observe, that a man is not qualified for a Professor, knowing nothing but merely his own profession. He should be otherwise well educated as to the sciences generally; able to converse understandingly with the scientific men with whom he is associated, and to assist in the councils of the Faculty on any subject of science on which they may have occasion to deliberate. Without this, he will incur their contempt, and bring disreputation on the institution. With respect to the professorship you mention, I scarcely know any of our judges personally; but I will name, for example, the late Judge Roane, who, I believe, was generally admitted to be among the ablest of them. His knowledge was confined to the common law chiefly, which does not constitute one half of the qualification of a really learned lawyer, much less that of a Professor of law for an University. And as to any other branches of science, he must have stood mute in the presence of his literary associates, or of any learned strangers or others visiting the University. Would this constitute the splendid stand we propose to take?
In the course of the trusts I have exercised through life with powers of appointment, I can say with truth, and with unspeakable comfort, that I never did appoint a relation to office, and that merely because I never saw the case in which some one did not offer, or occur, better qualified; and I have the most unlimited confidence, that in the appointment of Professors to our nursling institution, every individual of my associates will look with a single eye to the sublimation of its character, and adopt, as our sacred motto, ‘Detur digniori? In this way it will honor us, and bless our country.
I perceive that I have permitted my reflections to run into generalities beyond the scope of the particular intimation in your letter I will let them go, however, as a general confession of faith, not belonging merely to the present case.
Name me affectionately to our brethren with you, and be assured yourself of my constant friendship and respect.
Th: Jefferson.
LETTER CLXXIX.—TO JARED SPARKS, February 4, 1824
TO JARED SPARKS.
Monticello, February 4, 1824.
Dear Sir,
I duly received your favor of the 3th, and with it the last number of the North American Review. This has anticipated the one I should receive in course, but have not yet received, under my subscription to the new series. The article on the African colonization of the people of color, to which you invite my attention, I have read with great consideration. It is, indeed, a fine one, and will do much good. I learn from it more, too, than I had before known, of the degree of success and promise of that colony.
In the disposition of these unfortunate people, there are two rational objects to be distinctly kept in view. 1. The establishment of a colony on the coast of Africa, which may introduce among the aborigines the arts of cultivated life, and the blessings of civilization and science. By doing this, we may make to them some retribution for the long course of injuries we have been committing on their population. And considering that these blessings will descend to the ‘nati natorum, et qui nascentur ab illis,’ we shall in the long run have rendered them perhaps more good than evil. To fulfil this object, the colony of Sierra Leone promises well, and that of Mesurado adds to our prospect of success. Under this view, the Colonization Society is to be considered as a missionary society, having in view, however, objects more humane, more justifiable, and less aggressive on the peace of other nations, than the others of that appellation.
The second object, and the most interesting to us, as coming home to our physical and moral characters, to our happiness and safety, is to provide an asylum to which we can, by degrees, send the whole of that population from among us, and establish them under our patronage and protection, as a separate, free, and independent people, in some country and climate friendly to human life and happiness. That any place on the coast of Africa should answer the latter purpose, I have ever deemed entirely impossible. And without repeating the other arguments which have been urged by others, I will appeal to figures only, which admit no controversy. I shall speak in round numbers, not absolutely accurate, yet not so wide from truth as to vary the result materially. There are in the United States a million and a half of people of color in slavery. To send off the whole of these at once, nobody conceives to be practicable for us, or expedient for them. Let us take twenty-five years for its accomplishment, within which time they will be doubled. Their estimated value as property, in the first place, (for actual property has been lawfully vested in that form, and who can lawfully take it from the possessors?) at an average of two hundred dollars each, young and old, would amount to six hundred millions of dollars, which must be paid or lost by somebody. To this, add the cost of their transportation by land and sea to Mesurado, a year’s provision of food and clothing, implements of husbandry and of their trades, which will amount to three hundred millions more, making thirty-six millions of dollars a year for twenty-five years, with insurance of peace all that time, and it is impossible to look at the question a second time. I am aware that at the end of about sixteen years, a gradual detraction from this sum will commence, from the gradual diminution of breeders, and go on during the remaining nine years. Calculate this deduction, and it is still impossible to look at the enterprise a second time. I do not say this to induce an inference that the getting rid of them is for ever impossible. For that is neither my opinion nor my hope. But only that it cannot be done in this way. There is, I think, a way in which it can be done; that is, by emancipating the after born, leaving them, on due compensation, with their mothers, until their services are worth their maintenance, and then putting them to industrious occupations, until a proper age for deportation. This was the result of my reflections on the subject five and forty years ago, and I have never yet been able to conceive any other practicable plan. It was sketched in the Notes on Virginia, under the fourteenth query. The estimated value of the new-born infant is so low (say twelve dollars and fifty cents), that it would probably be yielded by the owner gratis, and would thus reduce the six hundred millions of dollars, the first head of expense, to thirty-seven millions and a half: leaving only the expenses of nourishment while with the mother, and of transportation. And from what fund are these expenses to be furnished? Why not from that of the lands which have been ceded by the very States now needing this relief? And ceded on no consideration, for the most part, but that of the general good of the whole. These cessions already constitute one fourth of the States of the Union. It may be said that these lands have been sold; are now the property of the citizens composing those States; and the money long ago received and expended. But an equivalent of lands in the territories since acquired may be appropriated to that object, or so much at least, as may be sufficient; and the object, although more important to the slave States, is highly so to the others also, if they were serious in their arguments on the Missouri question. The slave States, too, if more interested, would also contribute more by their gratuitous liberation, thus taking on themselves alone the first and heaviest item of expense.
In the plan sketched in the Notes on Virginia, no particular place of asylum was specified; because it was thought possible, that in the revolutionary state of America, then commenced, events might open to us some one within practicable distance. This has now happened. St. Domingo has become independent, and with a population of that color only; and if the public papers are to be credited, their Chief offers to pay their passage, to receive them as free citizens, and to provide them employment. This leaves, then, for the general confederacy, no expense but of nurture with the mother a few years, and would call, of course, for a very moderate appropriation of the vacant lands. Suppose the whole annual increase to be of sixty thousand effective births, fifty vessels, of four hundred tons burthen each, constantly employed in that short run, would carry off the increase of every year, and the old stock would die off in the ordinary course of nature, lessening from the commencement until its final disappearance. In this way no violation of private rights is proposed. Voluntary surrenders would probably come in as fast as the means to be provided for their care would be competent to it. Looking at my own State only, (and I presume not to speak for the others,) I verily believe that this surrender of property would not amount to more, annually, than half our present direct taxes, to be continued fully about twenty or twenty-five years, and then gradually diminishing for as many more until their final extinction; and even this half tax would not be paid in cash, but by the delivery of an object which they have never yet known or counted as part of their property: and those not possessing the object will be called on for nothing. I do not go into all the details of the burthens and benefits of this operation. And who could estimate its blessed effects? I leave this to those who will live to see their accomplishment, and to enjoy a beatitude forbidden to my age. But I leave it with this admonition, to rise and be doing. A million and a half are within their control; but six millions (which a majority of those now living will see them attain), and one million of these fighting men, will say, ‘We will not go.’
I am aware that this subject involves some constitutional scruples. But a liberal construction, justified by the object, may go far, and an amendment of the constitution, the whole length necessary. The separation of infants from their mothers, too, would produce some scruples of humanity. But this would be straining at a gnat, and swallowing a camel.
I am much pleased to see that you have taken up the subject of the duty on imported books. I hope a crusade will be kept up against it, until those in power shall become sensible of this stain on our legislation and shall wipe it from their code, and from the remembrance of man, if possible.
I salute you with assurances of high respect and esteem.
Th: Jefferson
LETTER CLXXX.—TO EDWARD LIVINGSTON, April 4, 1824
TO EDWARD LIVINGSTON.
Monticello, April 4, 1824.
Dear Sir,
It was with great pleasure I learned that the good people of New Orleans had restored you again to the councils of our country. I did not doubt the aid it would bring to the remains of our old school in Congress, in which your early labors had been so useful. You will find, I suppose, on revisiting our maritime States, the names of things more changed than the things themselves; that though our old opponents have given up their appellation, they have not, in assuming ours, abandoned their views, and that they are as strong nearly as they ever were. These cares, however, are no longer mine. I resign myself cheerfully to the managers of the ship, and the more contentedly, as I am near the end of my voyage. I have learned to be less confident in the conclusions of human reason, and give more credit to the honesty of contrary opinions. The radical idea of the character of the constitution of our government, which I have adopted as a key in cases of doubtful construction, is, that the whole field of government is divided into two departments, domestic and foreign, (the States in their mutual relations being of the latter) that the former department is reserved exclusively to the respective States within their own limits, and the latter assigned to a separate set of functionaries, constituting what may be called the, foreign branch, which, instead of a federal basis, is established as a distinct government quo ad hoc, acting as the domestic branch does on the citizens directly and coercively; that these departments have distinct directories, co-ordinate, and equally independent and supreme, each within its own sphere of action. Whenever a doubt arises to which of these branches a power belongs, I try it by this test. I recollect no case where a question simply between citizens of the same State has been transferred to the foreign department, except that of inhibiting tenders but of metallic money, and ex post facto legislation. The causes of these singularities are well remembered.
I thank you for the copy of your speech on the question of national improvement, which I have read with great pleasure, and recognise in it those powers of reasoning and persuasion of which I had formerly seen from you so many proofs. Yet, in candor, I must say it has not removed, in my mind, all the difficulties of the question. And I should really be alarmed at a difference of opinion with you, and suspicious of my own, were it not that I have, as companions in sentiment, the Madisons, the Monroes, the Randolphs, the Macons, all good men and true, of primitive principles. In one sentiment of the speech I particularly concur. ‘If we have a doubt relative to any power, we ought not to exercise it.’ When we consider the extensive and deep-seated opposition to this assumption, the conviction entertained by so many, that this deduction of powers by elaborate construction prostrates the rights reserved to the States, the difficulties with which it will rub along in the course of its exercise; that changes of majorities will be changing the system backwards and forwards, so that no undertaking under it will be safe; that there is not a State in the Union which would not give the power willingly, by way of amendment, with some little guard, perhaps, against abuse; I cannot but think it would be the wisest course to ask an express grant of the power. A government held together by the bands of reason only, requires much compromise of opinion; that things even salutary should not be crammed down the throats of dissenting brethren, especially when they may be put into a form to be willingly swallowed, and that a great deal of indulgence is necessary to strengthen habits of harmony and fraternity. In such a case, it seems to me it would be safer and wiser to ask an express grant of the power. This would render its exercise smooth and acceptable to all, and insure to it all the facilities which the could contribute, to prevent that kind of abuse which all will fear, because all know it is so much practised in public bodies, I mean the bartering of votes. It would reconcile every one, if limited by the proviso, that the federal proportion of each State should be expended within the State. With this single security against partiality and corrupt bargaining, I suppose there is not a State, perhaps not a man in the Union, who would not consent to add this to the powers of the General Government. But age has weaned me from questions of this kind. My delight is now in the passive occupation of reading; and it is with great reluctance I permit my mind ever to encounter subjects of difficult investigation. You have many years yet to come of vigorous activity, and I confidently trust they will be employed in cherishing every measure which may foster our brotherly union, and perpetuate a constitution of government destined to be the primitive and precious model of what is to change the condition of man over the globe. With this confidence, equally strong in your powers and purposes, I pray you to accept the assurance of my cordial esteem and respect.
Th: Jefferson.
LETTER CLXXXI.—TO MAJOR JOHN CARTWRIGHT, June 5,1824
TO MAJOR JOHN CARTWRIGHT.
Monticello, June 5,1824.
Dear and Venerable Sir,
I am much indebted for your kind letter of February the 29th, and for your valuable volume on the English constitution. I have, read this with pleasure and much approbation, and think it has deduced the constitution of the English nation from its rightful root, the Anglo-Saxon, it is really wonderful, that so many able and learned men should have failed in their attempts to define it with correctness. No wonder then, that Paine, who thought more than he read, should have credited the great authorities who have declared, that the will of Parliament is the constitution of England. So Marbois, before the French revolution, observed to me, that the Almanac Royal was the constitution of France. Your derivation of it from the Anglo-Saxons, seems to be made on legitimate principles. Having driven out the former inhabitants of that part of the island called England, they became aborigines as to you, and your lineal ancestors. They doubtless had a constitution; and although they have not left it in a written formula, to the precise text of which you may always appeal, yet they have left fragments of their history and laws, from which it may be inferred with considerable certainty. Whatever their history and laws show to have been practised with approbation, we may presume was permitted by their constitution; whatever was not so practised, was not permitted. And although this constitution was violated and set at nought by Norman force, yet force cannot change right. A perpetual claim was kept up by the nation, by their perpetual demand of a restoration of their Saxon laws; which shows they were never relinquished by the will of the nation. In the pullings and haulings for these ancient rights, between the nation, and its kings of the races of Plantagenets, Tudors, and Stuarts, there was sometimes gain, and sometimes loss, until the final re-conquest of their rights from the Stuarts. The destitution and expulsion of this race broke the thread of pretended inheritance extinguished all regal usurpations, and the nation reentered into all its rights; and although in their bill of rights they specifically reclaimed some only, yet the omission of the others was no renunciation of the right to assume their exercise also, whenever occasion should occur. The new King received no rights or powers, but those expressly granted to him. It has ever appeared to me, that the difference between the whig and the tory of England is, that the whig deduces his rights from the Anglo-Saxon source, and the tory from the Norman. And Hume, the great apostle of toryism, says in so many words, (note AA to chapter 42,) that, in the reign of the Stuarts, ‘it was the people who encroached upon the sovereign, not the sovereign who attempted, as is pretended, to usurp upon the people.’ This supposes the Norman usurpations to be rights in his successors. And again, (C. 159,) ‘the Commons established a principle, which is noble in itself, and seems specious, but is belied by all history and experience, that the people are the origin of all just power.’ And where else will this degenerate son of science, this traitor to his fellow-men, find the origin of just powers, if not in the majority of the society? Will it be in the minority? Or in an individual of that minority?
Our revolution commenced on more favorable ground. It presented us an album on which we were free to write what we pleased. We had no occasion to search into musty records, to hunt up royal parchments, or to investigate the laws and institutions of a semi-barbarous ancestry. We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent (as in electing their functionaries, executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved), or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press. In the structure of our legislatures, we think experience has proved the benefit of subjecting questions to two separate bodies of deliberants; but in constituting these, natural right has been mistaken, some making one of these bodies, and some both, the representatives of property instead of persons; whereas the double deliberation might be as well obtained without any violation of true principle, either by requiring a greater age in one of the bodies, or by electing a proper number of representatives of persons, dividing them by lots into two chambers, and renewing the division at frequent intervals, in order to break up all cabals. Virginia, of which I am myself a native and resident, was not only the first of the States, but, I believe I may say, the first of the nations of the earth, which assembled its wise men peaceably together to form a fundamental constitution, to commit it to writing, and place it among their archives, where every one should be free to appeal to its text. But this act was very imperfect. The other States, as they proceeded successively to the same work, made successive improvements; and several of them, still further corrected by experience, have, by conventions, still further amended their first forms. My own State has gone on so far with its première ébauch; but it is now proposing to call a convention for amendment. Among other improvements, I hope they will adopt the subdivision of our counties into wards. The former may be estimated at an average of twenty-four miles square; the latter should be about six miles square each, and would answer to the hundreds of your Saxon Alfred. In each of these might be, 1. An elementary school. 2. A company of militia, with its officers. 3. A justice of the peace and constable. 4. Each ward should take care of their own poor. 5. Their own roads. 6. Their own police. 7. Elect within themselves one or more jurors to attend the courts of justice. And, 8. Give in at their Folk-house, their votes for all functionaries reserved to their election. Each ward would thus be a small republic within itself, and every man in the State would thus become an acting member of the common government, transacting in person a great portion of its rights and duties, subordinate indeed, yet important and entirely within his competence. The wit of man cannot devise a more solid basis for a free, durable, and well-administered republic.
With respect to our State and federal governments, I do not think their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole. To the State governments, are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of other States; these functions alone being made federal. The one is the domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department. There are one or two exceptions only to this partition of power. But you may ask, if the two departments should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground: but if it can neither be avoided nor compromised, a convention of the States must be called, to ascribe the doubtful power to that department which they may think best. You will perceive by these details, that we have not yet so far perfected our constitutions as to venture to make them unchangeable. But still, in their present state, we consider them not otherwise changeable than by the authority of the people, on a special election of representatives for that purpose expressly: they are until then the lex legum.
But can they be made unchangeable? Can one generation bind another, and all others, in succession for ever? I think not. The Creator has made the earth for the living, not the dead. Rights and powrers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things. The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals, of a thousand forms. To what then are attached the rights and powers they held while in the form of men? A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.
I was glad to find in your book a formal contradiction, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed. But it may amuse you, to show when, and by what means, they stole this law in upon us. In a case of quare impedit in the Year-book, 34. H. 6. folio 38. (anno 1458,) a question was made, how far the ecclesiastical law was to be respected in a common law court. And Prisot, Chief Justice, gives his opinion in these words. ‘A tiel leis qu’ils de seint eglise ont enancien scripture, covient a nous a donner credence; car ceo common ley stir quels touts manners leis sont fondes. Et auxy, Sir, nous sumus obliges de conustre lour ley de saint eglise: et semblablement ils sont obliges de conustre nostre ley. Et, Sir, si poit apperer or a nous que Pevesque ad fait come un ordinary fera en tiel cas, adong nous devons ceo adju-ger bon,ou auterment nemy,’ &c. See S. C. Fitzh.Abr. Qu. imp. 89. Bro. Abr. Qu. imp. 12. Finch in his first book, c. 3. is the first afterwards who quotes this case, and mistakes it thus. ‘To such laws of the church as have warrant in holy scripture, our law giveth credence.’ And cites Prisot; mistranslating ‘ancien scripture’ into ‘holy scripture.’ Whereas, Prisot palpably says, ‘to such laws as those of holy church have in ancient writing, it is proper for us to give credence;’ to wit, to their ancient written laws. This was in 1613, a century and a half after the dictum of Prisot. Wingate, in 1658, erects this false translation into a maxim of the common law, copying the words of Finch, but citing Prisot. Wing. Max. 3. and Sheppard, title, ‘Religion,’ in 1675, copies the same mistranslation, quoting the Y. B. Finch and Win-gate. Hale expresses it in these words; ‘Christianity is parcel of the laws of England.’ 1 Ventr. 293, 3 Keb. 607. But he quotes no authority. By these echoings and re-echoings from one to another, it had become so established in 1728, that in the case of the King vs. Woolston, 2 Stra. 834, the court would not suffer it to be debated, whether to write against Christianity was punishable in the temporal court at common law. Wood, therefore, 409, ventures still to vary the phrase and say, that all blasphemy and profaneness are offences by the common law; and cites 2 Stra. Then Blackstone, in 1763, IV. 59, repeats the words of Hale, that ‘Christianity is part of the laws of England,’ citing Ventris and Strange. And finally, Lord Mansfield, with a little qualification, in Evans’s case, in 1767, says, that ‘the essential principles of revealed religion are part of the common law.’ Thus ingulphing Bible, Testament, and all into the common law, without citing any authority. And thus we find this chain of authorities hanging link by link, one upon another, and all ultimately on one and the same hook, and that a mistranslation of the words ‘ancien scripture,’ used by Prisot. Finch quotes Prisot; Wingate does the same. Sheppard quotes Prisot, Finch, and Wingate. Hale cites nobody. The court, in Woolston’s case, cite Hale. Wood cites Woolston’s case. Blackstone quotes Woolston’s case and Hale. And Lord Mansfield, like Hale, ventures it on his own authority. Here I might defy the best read lawyer to produce another scrip of authority for this judiciary forgery; and I might go on further to show, how some of the Anglo-Saxon priests interpolated into the text of Alfred’s laws, the 20th, 21st, 22nd, and 23rd chapters of Exodus, and the 15th of the Acts of the Apostles, from the 23rd to the 29th verses. But this would lead my pen and your patience too far. What a conspiracy this, between Church and State! Sing Tantarara, rogues all, rogues all, Sing Tantarara, rogues all!
