Томас Джефферсон
Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 1
2. There was a process depending in the ordinary courts of justice, between two individuals of the name of Robinson and Fauntleroy, who were relations, of different descriptions, to one Robinson, a British subject, lately dead. Each party claimed a right to inherit the lands of the decedent, according to the laws. Their right should, by the constitution, have been decided by the judiciary courts; and it was actually depending before them. One of the parties petitioned the Assembly, (I think it was in the year 1782,) who passed a law deciding the right in his favor. In the following year, a Frenchman, master of a vessel, entered into port without complying with the laws established in such cases, whereby he incurred the forfeitures of the law to any person who would sue for them. An individual instituted a legal process to recover these forfeitures, according to the law of the land. The Frenchman petitioned the Assembly, who passed a law deciding the question of forfeiture in his favor. These acts are occasional repeals of that part of the constitution, which forbids the same persons to exercise legislative and judiciary powers, at the same time.
3. The Assembly is in the habitual exercise, during their sessions, of directing the Executive what to do. There are few pages of their journals, which do not furnish proofs of this, and, consequently, instances of the legislative and executive powers exercised by the same persons, at the same time. These things prove, that it has been the uninterrupted opinion of every Assembly, from that which passed the ordinance called the constitution, down to the present day, that their, acts may control that ordinance, and, of course, that the State of Virginia has no fixed constitution at all.
ARTICLE BY JEFFERSON: ‘Etats Unis,’ FOR THE Encyclop©die M©thodique
[The succeeding observations were made by Mr. Jefferson on an article entitled ‘Etats Unis,’ prepared for the Encyclop©die M©thodique, and submitted to him before its publication.]
Page 8. The malefactors sent to America were not sufficient in number to merit enumeration, as one class out of three, which peopled America. It was at a late period of their history, that this practice began. I have no book by me, which enables me to point out the date of its commencement. But I do not think the whole number sent would amount to two thousand, and being principally men, eaten up with disease, they married seldom and propagated little. I do not suppose that themselves and their descendants are, at present, four thousand, which is little more than one thousandth part of the whole inhabitants.
Indented servants formed a considerable supply. These were poor Europeans, who went to America to settle themselves. If they could pay their passage, it was well. If not, they must find means of paying it. They were at liberty, therefore, to make an agreement with any person they chose, to serve him such a length of time as they agreed on, upon condition that he would repay, to the master of the vessel, the expenses of their passage. If, being foreigners, unable to speak the language, they did not know how to make a bargain for themselves, the captain of the vessel contracted for them, with such persons as he could. This contract was by deed indented, which occasioned them to be called indented servants. Sometimes they were called redemptioners, because, by their agreement with the master of the vessel, they could redeem themselves from his power by paying their passage; which they frequently effected, by hiring themselves on their arrival, as is before mentioned. In some States, I know that these people had a right of marrying themselves, without their master’s leave, and I did suppose they had that right every where. I did not know, that, in any of the States, they demanded so much as a week for every day’s absence, without leave. I suspect this must have been at a very early period, while the governments were in the hands of the first emigrants, who, being mostly laborers, were narrow-minded and severe. I know that in Virginia, the laws allowed their servitude to be protracted only two days for every one they were absent without leave. So mild was this kind of servitude, that it was very frequent for foreigners, who carried to America money enough, not only to pay their passage, but to buy themselves a farm, to indent themselves to a master for three years, for a certain sum of money, with a view to learn the husbandry of the country. I will here make a general observation. So desirous are the poor of Europe to get to America, where they may better their condition, that, being unable to pay their passage, they will agree to serve two or three years on their arrival there, rather than not go. During the time of that service, they are better fed, better clothed, and have lighter labor, than while in Europe. Continuing to work for hire, a few years longer, they buy a farm, marry, and enjoy all the sweets of a domestic society of their own. The American governments are censured for permitting this species of servitude, which lays the foundation of the happiness of these people. But what should these governments do? Pay the passage of all those who choose to go into their country? They are not able; nor, were they able, do they think the purchase worth the price. Should they exclude these people from their shores? Those who know their situations in Europe and America, would not say, that this is the alternative which humanity dictates. It is said these people are deceived by those who carry them over. But this is done in Europe. How can the American governments prevent it? Should they punish the deceiver? It seems more incumbent on the European government, where the act is done, and where a public injury is sustained from it. However, it is only in Europe that this deception is heard of. The individuals are generally satisfied in America, with their adventure, and very few of them wish not to have made it. I must add, that the Congress have nothing to do with this matter. It belongs to the legislatures of the several States.
Page 26. ‘Une puissance, en effet,’ &c. The account of the settlement of the colonies, which precedes this paragraph, shows that that settlement was not made by public authority, or at the public expense of England; but by the exertions, and at the expense, of individuals. Hence it happened, that their constitutions were not formed systematically, but according to the circumstances which happened to exist in each. Hence, too, the principles of the political connection between the old and new countries were never settled. That it would have been advantageous to have settled them, is certain; and, particularly, to have provided a body which should decide, in the last resort, all cases wherein both parties were interested. But it is not certain that that right would have been given, or ought to have been given, to the Parliament; much less, that it resulted to the Parliament, without having been given to it expressly. Why was it necessary, that there should have been a body to decide in the last resort? Because, it would have been for the good of both parties. But this reason shows, it ought not to have been the Parliament, since that would have exercised it for the good of one party only.
Page 105. As to the change of the 8th article of Confederation, for quotaing requisitions of money on the States.
By a report of the secretary of Congress, dated January the 4th, 1786, eight States had then acceded to the proposition; to wit, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, and North Carolina.
Congress, on the 18th of April, 1783, recommended to the States to invest them with a power, for twenty-five years, to levy an impost of five per cent, on all articles imported from abroad. New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, and South Carolina, had complied with this, before the 4th of January, 1786. Maryland had passed an act for the same purpose; but, by a mistake in referring to the date of the recommendation of Congress, the act failed of its effect. This was therefore to be rectified. Since the 4th of January, the public papers tell us, that Rhode Island has complied fully with this recommendation. It remains still for New York and Georgia to do it. The exportations of America, which are tolerably well known, are the best measure for estimating the importations. These are probably worth about twenty millions of dollars annually. Of course, this impost will pay the interest of a debt to that amount. If confined to the foreign debt, it will pay the whole interest of that, and sink half a million of the capital annually. The expenses of collecting this impost, will probably be six per cent, on its amount, this being the usual expense of collection in the United States. This will be sixty thousand dollars.
On the 30th of April, 1784, Congress recommended to the States, to invest them with a power, for fifteen years, to exclude from their ports the vessels of all nations, not having a treaty of commerce with them; and to pass, as to all nations, an act on the principles of the British navigation act. Not that they were disposed to carry these powers into execution, with such as would meet them in fair and equal arrangements of commerce; but that they might be able to do it against those who should not. On the 4th of January, 1786, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Maryland, Virginia, and North Carolina, had done it: It remained for New Jersey, Delaware, South Carolina, and Georgia to do the same.
in the mean time, the general idea has advanced before the demands of Congress, and several States have passed acts, for vesting Congress with the whole regulation of their commerce, reserving the revenue arising from these regulations, to the disposal of the State in which it is levied. The States which, according to the public papers, have passed such acts, are New Hampshire, Massachusetts, Rhode Island, New Jersey, Delaware, and Virginia: but the Assembly of Virginia, apprehensive that this disjointed method of proceeding may fail in its effect, or be much retarded, passed a resolution on the 21st of January, 1786, appointing commissioners to meet others from the other States, whom they invite into the same measure, to digest the form of an act for investing Congress with, such powers over their commerce, as shall be thought expedient, which act is to be reported to their several Assemblies for their adoption. This was the state of the several propositions relative to the impost and regulation of commerce at the date of our latest advices from America.
Page 125. The General Assembly of Virginia, at their session in 1785, passed an act, declaring that the district called Kentucky shall be a separate and independent State on these conditions. 1. That the people of that district shall consent to it. 2. That Congress shall consent to it, and shall receive them into the federal Union. 3. That they shall take on themselves a proportionable part of the public debt of Virginia. 4. That they shall confirm all titles to lands within their district made by the State of Virginia before their separation.
Page 139. It was in 1783, and not in 1781, that Congress quitted Philadelphia.
Page 140, ‘Le Congr¨s qui se trouvoit a la port©e des rebelles fut effray©.’ I was not present on this occasion, but, I have had relations of the transaction from several who were. The conduct of Congress was marked with indignation and firmness. They received no propositions from the mutineers. They came to the resolutions which may be seen in the journals of June the 21st, 1783, then adjourned regularly and went through the body of the mutineers to their respective lodgings. The measures taken by Dickinson, the President of Pennsylvania, for punishing this insult, not being satisfactory to Congress, they assembled nine days after at Princeton, in Jersey. The people of Pennsylvania sent petitions, declaring their indignation at what had passed, their devotion to the federal head, and their dispositions to protect it, and praying them to return; the legislature as soon as assembled did the same thing; the Executive, whose irresolution had been so exceptionable, made apologies. But Congress were now removed; and to the opinion that this example was proper, other causes were now added sufficient to prevent their return to Philadelphia.
Page 155, I. 2. Omit ‘La dette actuelle,’ &c.
And also, ‘Les details,’ &c. &c. to the end of the paragraph, ‘celles des Etats Unis’ page 156. The reason is, that these passages seem to suppose that the several sums emitted by Congress at different times, amounting nominally to two hundred millions of dollars, had been actually worth that at the time of emission, and of course, that the soldiers and others had received that sum from Congress. But nothing is further from the truth. The soldier, victualler, or other persons who received forty dollars for a service at the close of the year 1779, received, in fact, no more than he who received one dollar for the same service in the year 1775, or 1776; because in those years the paper money was at par with silver; whereas, by the close of 1779, forty paper dollars were worth but one of silver, and would buy no more of the necessaries of life. To know what the monies emitted by Congress were worth to the people at the time they received them, we will state the date and amount of every several emission, the depreciation of paper money at the time, and the real worth of the emission in silver or gold.
[Illustration: Depreciation of Money 1775-1779, page411]
[*The sum actually voted was 50,000,400, but part of it was for exchange of old bills, without saying how much. It is presumed that these exchanges absorbed 25,552,780, because the remainder 24,447,620, with all the other emissions preceding September 2nd, 1779, will amount to 159,948,880, the sum which Congress declared to be then in circulation.]
Thus it appears that the two hundred millions of dollars, emitted by Congress, were worth to those who received them, but about thirty-six millions of silver dollars. If we estimate at the same value the like sum of two hundred millions, supposed to have been emitted by the States, and reckon the Federal debt, foreign and domestic, at about forty-three millions, and the State debts at about twenty-five millions, it will form an amount of one hundred and forty millions of dollars, or seven hundred and thirty-five millions of livres Tournois, the total sum which the war has cost the inhabitants of the United States. It continued eight years, from the battle of Lexington to the cessation of hostilities in America. The annual expense then was about seventeen millions and five hundred thousand dollars, while that of our enemies was a greater number of guineas.
It will be asked, how will the two masses of Continental and of State money have cost the people of the United States seventy-two millions of dollars, when they are to be redeemed now with about six millions? I answer, that the difference, being sixty-six millions, has been lost on the paper bills separately by the successive holders of them. Every one through whose hands a bill passed lost on that bill what it lost in value, during the time it was in his hands. This was a real tax on him; and in this way, the people of the United States actually contributed those sixty-six millions of dollars during the war, and by a mode of taxation the most oppressive of all, because the most unequal of all.
Page 166; bottom line. Leave out ‘Et c’est une autre ©conomie,’ &c. The reason of this is, that in 1784, purchases of lands were to be made of the Indians, which were accordingly made. But in 1785 they did not propose to make any purchase. The money desired in 1785, five thousand dollars, was probably to pay agents residing among the Indians, or balances of the purchases of 1784. These purchases will not be made every year; but only at distant intervals, as our settlements are extended: and it may be regarded as certain, that not a foot of land will ever be taken from the Indians without their own consent. The sacredness of their rights is felt by all thinking persons in America, as much as in Europe.
Page 170. Virginia was quotaed the highest of any State in the Union. But during the war several States appear to have paid more, because they were free from the enemy, whilst Virginia was cruelly ravaged. The requisition of 1784 was so quotaed on the several States, as to bring up their arrearages; so that, when they should have paid the sums then demanded, all would be on an equal footing. It is necessary to give a further explanation of this requisition. The requisitions of one million and two hundred thousand dollars, of eight millions, and two millions, had been made during the war, as an experiment to see whether in that situation the States could furnish the necessary supplies. It was found they could not. The money was thereupon obtained by loans in Europe: and Congress meant by their requisition of 1784, to abandon the requisitions of one million and two hundred thousand dollars, and of two millions, and also one half of the eight millions. But as all the States almost had made some payments in part of that requisition, they were obliged to retain such a proportion of it as would enable them to call for equal contributions from all the others.
Page 170. I cannot say how it has happened, that the debt of Connecticut is greater than that of Virginia. The latter is the richest in productions, and, perhaps, made greater exertions to pay for her supplies in the course of the war.
Page 172. ‘Les Americains levant apr¨s une banqueroute, &c. The objections made to the United States being here condensed together in a short compass, perhaps it would not be improper to condense the answers in as small a compass in some such form as follows. That is, after the words ‘aucun espoir,’ add, ‘But to these charges it may be justly answered, that those are no bankrupts who acknowledge the sacredness of their debts in their just and real amount, who are able within a reasonable time to pay them, and who are actually proceeding in that payment; that they furnish, in fact, the supplies necessary for the support of their government; that their officers and soldiers are satisfied, as the interest of their debt is paid regularly, and the principal is in a course of payment; that the question, whether they fought ill should be asked of those who met them at Bunker’s Hill, Bennington, Stillwater, King’s Mountain, the Cowpens, Guilford, and the Eutaw. And that the charges of ingratitude, madness, infidelity, and corruption, are easily made by those to whom falsehoods cost nothing; but that no instances in support of them have been produced or can be produced.’
Page 182. ‘Les officiers et les soldats ont ©t© pay©s,’ &c. The balances due to the officers and soldiers have been ascertained, and a certificate of the sum given to each; on these the interest is regularly paid; and every occasion is seized of paying the principal by receiving these certificates as money whenever public property is sold, till a more regular and effectual method can be taken for paying the whole.
Page 191. ‘Quoique la loi dont nous parlons, ne s’observe plus en Angleterre.’ ‘An alien born may purchase lands or other estates, but not for his own use; for the King is thereupon entitled to them.’ ‘Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation. For this is necessary for the advancement of trade.’ ‘Also, an alien may bring an action concerning personal property, and may make a will and dispose of his personal estate.’ When I mention these rights of an alien, I must be understood of alien friends only, or such whose countries are in peace with ours; for alien enemies have no rights, no privileges, unless by the King’s special favor during the time of war.‘Blackstone, B.1. c.10. page 372. ‘An alien friend may have personal actions, but not real; an alien enemy shall have neither real, personal, nor mixed actions. The reason why an alien friend is allowed to maintain a personal action is, because he would otherwise be incapacitated to merchandise, which may be as much to our prejudice as his.’ Cunningham’s Law Diet, title, Aliens. The above is the clear law of England, practised from the earliest ages to this day, and never denied. The passage quoted by M. de Meusnier from Black-stone, c.26. is from his chapter ‘Of title to things personal by occupancy.’ The word ‘personal’ shows that nothing in this chapter relates to lands which are real estate; and therefore, this passage does not contradict the one before quoted from the same author (1.B. c.10.), which says, that the lands of an alien belong to the King. The words, ‘of title by occupancy,’ show, that it does not relate to debts, which being a moral existence only, cannot be the subject of occupancy. Blackstone, in this passage (B.2. c.26.), speaks only of personal goods of an alien, which another may find and seize as prime occupant.
Page 193. ‘Le remboursement presentera des difficult©s des sommes consid©rables,’ &c. There is no difficulty nor doubt on this subject. Every one is sensible how this is to be ultimately settled. Neither the British creditor, nor the State, will be permitted to lose by these payments. The debtor will be credited for what he paid, according to what it was really worth at the time he paid it, and he must pay the balance. Nor does he lose by this; for if a man who owed one thousand dollars to a British merchant, paid eight hundred paper dollars into the treasury, when the depreciation was at eight for one, it is clear he paid but one hundred real dollars, and must now pay nine hundred. It is probable he received those eight hundred dollars for one hundred bushels of wheat, which were never worth more than one hundred silver dollars. He is credited, therefore, the full worth of his wheat. The equivoque is in the use of the word ‘dollar.’
Page 226. ‘Qu’on abolisse les privil¨ges du clerg©.’ This privilege, originally allowed to the clergy, is now extended to every man, and even to women. It is a right of exemption from capital punishment for the first offence in most cases. It is then a pardon by the law. In other cases, the Executive gives the pardon. But when laws are made as mild as they should be, both those pardons are absurd. The principle of Beccaria is sound. Let the legislators be merciful, but the executors of the law inexorable. As the term ‘privil¨ges du clerg©’ may be misunderstood by foreigners, perhaps it will be better to strike it out here and substitute the word ‘pardon.’
Page 239. ‘Les commissaires veulent,’ &c. Manslaughter is the killing a man with design, but in a sudden gust of passion, and where the killer has not had time to cool. The first offence is not punished capitally, but the second is. This is the law of England and of all the American States; and is not a new proposition. Those laws have supposed that a man, whose passions have so much dominion over him, as to lead him to repeated acts of murder, is unsafe to society: that it is better he should be put to death by the law, than others more innocent than himself on the movements of his impetuous passions.
Ibid. ‘Mal-ais© d’indiquer la nuance pr©cise,’ &c. In forming a scale of crimes and punishments, two considerations have principal weight. 1. The atrocity of the crime. 2. The peculiar circumstances of a country, which furnish greater temptations to commit it, or greater facilities for escaping detection, The punishment must be heavier to counterbalance this. Were the first the only consideration, all nations would form the same scale. But as the circumstances of a country have influence on the punishment, and no two countries exist precisely under the same circumstances, no two countries will form the same scale of crimes and punishments. For example; in America the inhabitants let their horses go at large in the uninclosed lands which are so extensive as to maintain them altogether. It is easy, therefore, to steal them and easy to escape. Therefore the laws are obliged to oppose these temptations with a heavier degree of punishment. For this reason the stealing of a horse in America is punished more severely, than stealing the same value in any other form. In Europe where horses are confined so securely, that it is impossible to steal them, that species of theft need not be punished more severely than any other. In some countries of Europe, stealing fruit from trees in punished capitally. The reason is, that it being impossible to lock fruit trees up in coffers, as we do our money, it is impossible to oppose physical bars to this species of theft. Moral ones are therefore opposed by the laws. This to an unreflecting American appears the most enormous of all the abuses of power; because he has been used to see fruits hanging in such quantities, that if not taken by men they would rot: he has been used to consider them therefore as of no value, and as not furnishing materials for the commission of a crime. This must serve as an apology for the arrangement of crimes and punishments in the scale under our consideration. A different one would be formed here; and still different ones in Italy, Turkey, China, &c.
Page 240. ‘Les officiers Americains,’ &c. to page 264, ‘qui le m©ritoient.’ I would propose to new-model this section in the following manner, 1. Give a succinct history of the origin and establishment of the Cincinnati. 2. Examine whether in its present form it threatens any dangers to the State. 3. Propose the most practicable method of preventing them.
Having been in America during the period in which this institution was formed, and being then in a situation which gave me opportunities of seeing it in all its stages, I may venture to give M. de Meusnier materials for the first branch of the preceding distribution of the subject. The second and third he will best execute himself. I should write its history in the following form. When on the close of that war which established the independence of America, its army was about to be disbanded, the officers, who, during the course of it, had gone through the most trying scenes together, who by mutual aids and good offices had become dear to one another, felt with great oppression of mind the approach of that moment which was to separate them, never perhaps to meet again. They were from different States, and from distant parts of the same State. Hazard alone could therefore give them but rare and partial occasions of seeing each other. They were of course to abandon altogether the hope of ever meeting again, or to devise some occasion which might bring them together. And why not come together on purpose at stated times? Would not the trouble of such a journey be greatly overpaid by the pleasure of seeing each other again, by the sweetest of all consolations, the talking over the scenes of difficulty and of endearment they had gone through? This too would enable them to know who of them should succeed in the world, who should be unsuccessful, and to open the purses of all to every laboring brother. This idea was too soothing not to be cherished in conversation. It was improved into that of a regular association, with an organized administration, with periodical meetings, general and particular, fixed contributions for those who should be in distress, and a badge by which not only those who had not had occasion to become personally known should be able to recognise one another, but which should be worn by their descendants, to perpetuate among them the friendships which had bound their ancestors together.
General Washington was, at that moment, oppressed with the operation of disbanding an army which was not paid, and the difficulty of this operation was increased, by some two or three States having expressed sentiments, which did not indicate a sufficient attention to their payment. He was sometimes present, when his officers were fashioning, in their conversations, their newly proposed society. He saw the innocence of its origin, and foresaw no effects less innocent. He was, at that time, writing his valedictory letter to the States, which has been so deservedly applauded by the world. Far from thinking it a moment to multiply the causes of irritation, by thwarting a proposition which had absolutely no other basis but that of benevolence and friendship, he was rather satisfied to find himself aided in his difficulties by this new incident, which occupied, and, at the same time, soothed the minds of the officers. He thought, too, that this institution would be one instrument the more, for strengthening the federal bond, and for promoting federal ideas. The institution was formed. They incorporated into it the officers of the French army and navy, by whose sides they had fought, and with whose aid they had finally prevailed, extending it to such grades, as they were told might be permitted to enter into it. They sent an officer to France, to make the proposition to them, and to procure the badges which they had devised for their order. The moment of disbanding the army having come, before they could have a full meeting to appoint their President, the General was prayed to act in that office till their first general meeting, which was to be held at Philadelphia, in the month of May following.
The laws of the society were published. Men who read them in their closers, unwarmed by those sentiments of friendship which had produced them, inattentive to those pains which an approaching separation had excited in the minds of the instituters, politicians, who see in every thing only the dangers with which it threatens civil society, in fine, the laboring people, who, shielded by equal laws, had never seen any difference between man and man, but had read of terrible oppressions, which people of their description experience in other countries, from those who are distinguished by titles and badges, began to be alarmed at this new institution. A remarkable silence, however, was observed. Their solicitudes were long confined within the circles of private conversation. At length, however, a Mr. Burke, Chief Justice of South Carolina, broke that silence. He wrote against the new institution, foreboding its dangers, very imperfectly indeed, because he had nothing but his imagination to aid him. An American could do no more; for to detail the real evils of aristocracy, they must be seen in Europe. Burke’s fears were thought exaggerations in America; while in Europe, it is known that even Mirabeau has but faintly sketched the curses of hereditary aristocracy, as they are experienced here, and as they would have followed in America, had this institution remained. The epigraph of Burke’s pamphlet, was ‘Blow ye the trumpet in Zion.’ Its effect corresponded with its epigraph. This institution became, first, the subject of general conversation. Next, it was made the subject of deliberation in the legislative Assemblies of some of the States. The Governor of South Carolina censured it, in an address to the Assembly of that State. The Assemblies of Massachusetts, Rhode Island, and Pennsylvania condemned its principles. No circumstance, indeed, brought the consideration of it expressly before Congress; yet it had sunk deep into their minds. An offer having been made to them, on the part of the Polish order of Divine Providence, to receive some of their distinguished citizens into that order, they made that an occasion to declare, that these distinctions were contrary to the principles of their Confederation.
