Letter to James Madison, August 28, 1789

Letter to James Madison, August 28, 1789 (On the liberty to write, speak, and publish and its limits)


My last to you was of July 29. Since that I have received yours of May 27. June 13. and 30. The tranquillity of the city has not been disturbed since my last. Dissensions between the French and Swiss guards occasioned some private combats in which five or six were killed. These dissensions are made up. The want of bread for some days past has greatly endangered the peace of the city. Some get a little bread, some none at all. The poor are the best served because they besiege perpetually the doors of the bakers. Notwithstanding this distress, and the palpable impotence of the city administration to furnish bread to the city, it was not till yesterday that general leave was given to the bakers to go into the country and buy flour for themselves as they can. This will soon relieve us, because the wheat harvest is well advanced. Never was there a country where the practice of governing too much had taken deeper root and done more mischeif. Their declaration of rights is finished. If printed in time I will inclose a copy with this. It is doubtful whether they will now take up the finance or the constitution first. The distress for money endangers every thing. No taxes are paid, and no money can be borrowed. Mr. Necker was yesterday to give in a memoir to the Assembly on this subject. I think they will give him leave to put into execution any plan he pleases, so as to debarrass themselves of this and take up that of the constitution. No plan is yet reported; but the leading members (with some small differences of opinion) have in contemplation the following. The Executive power in a hereditary king, with a negative on laws and power to dissolve the legislature, to be considerably restrained in the making of treaties, and limited in his expences. The legislative in a house of representatives. They propose a senate also, chosen on the plan of our federal senate by the provincial assemblies, but to be for life, of a certain age (they talk of 40. years) and certain wealth (4 or 500 guineas a year) but to have no other power as to laws but to remonstrate against them to the representatives, who will then determine their fate by a simple majority. This you will readily perceive is a mere council of revision like that of New York, which, in order to be something, must form an alliance with the king, to avail themselves of his veto. The alliance will be useful to both and to the nation. The representatives to be chosen every two or three years. The judiciary system is less prepared than any other part of their plan. However they will abolish the parliaments, and establish an order of judges and justices, general and provincial, a good deal like ours, with trial by jury in criminal cases certainly, perhaps also in civil. The provinces will have assemblies for their provincial government, and the cities a municipal body for municipal government, all founded on the basis of popular election. These subordinate governments, tho completely dependant on the general one, will be entrusted with almost the whole of the details which our state governments exercise. They will have their own judiciary, final in all but great cases, the Executive business will principally pass through their hands, and a certain local legislation will be allowed them. In short ours has been professedly their model, in which such changes are made as a difference of circumstance rendered necessary and some others neither necessary nor advantageous, but into which men will ever run when versed in theory and new in the practice of government, when acquainted with man only as they see him in their books and not in the world. This plan will undoubtedly undergo changes in the assembly, and the longer it is delayed the greater will be the changes: for that assembly, or rather the patriotic part of it, hooped together heretofore by a common enemy, are less compact since their victory. That enemy (the civil and ecclesiastical aristocracy) begins to raise it's head. The lees too of the patriotic party, of wicked principles and desperate fortunes, hoping to pillage something in the wreck of their country, are attaching themselves to the faction of the Duke of Orleans, that faction is caballing with the populace, and intriguing at London, the Hague and Berlin and have evidently in view the transfer of the crown to the D. of Orleans. He is a man of moderate understanding, of no principle, absorbed in low vice, and incapable of abstracting himself from the filth of that to direct any thing else. His name and his money therefore are mere tools in the hands of those who are duping him. Mirabeau is their chief. They may produce a temporary confusion, and even a temporary civil war, supported as they will be by the money of England; but they cannot have success ultimately. The king, the mass of the substantial people of the whole country, the army, and the influential part of the clergy, form a firm phalanx which must prevail. Should those delays which necessarily attend the deliberations of a body of 1200 men give time to this plot to ripen and burst so as to break up the assembly before any thing definitive is done, a constitution, the principles of which are pretty well settled in the minds of the assembly, will be proposed by the national militia (that is by their commander) urged by the individual members of the assembly, signed by the king, and supported by the nation, to prevail till circumstances shall permit it's revision and more regular sanction. This I suppose the pis-aller of their affairs, while their probable event is a peaceable settlement of them. They fear a war from England Holland and Prussia. I think England will give money, but not make war. Holland would soon be afire internally were she to be embroiled in external difficulties. Prussia must know this and act accordingly.

It is impossible to desire better dispositions towards us, than prevail in this assembly. Our proceedings have been viewed as a model for them on every occasion; and tho in the heat of debate men are generally disposed to contradict every authority urged by their opponents, ours has been treated like that of the bible, open to explanation but not to question. I am sorry that in the moment of such a disposition any thing should come from us to check it. The placing them on a mere footing with the English will have this effect. When of two nations, the one has engaged herself in a ruinous war for us, has spent her blood and money to save us, has opened her bosom to us in peace, and receive us almost on the footing of her own citizens, while the other has moved heaven, earth and hell to exterminate us in war, has insulted us in all her councils in peace, shut her doors to us in every part where her interests would admit it, libelled us in foreign nations, endeavored to poison them against the reception of our most precious commodities, to place these two nations on a footing, is to give a great deal more to one than to the other if the maxim be true that to make unequal quantities equal you must add more to the one than the other. To say in excuse that gratitude is never to enter into the motives of national conduct, is to revive a principle which has been buried for centuries with it's kindred principles of the lawfulness of assassination, poison, perjury &c. All of these were legitimate principles in the dark ages which intervened between antient and modern civilisation, but exploded and held in just horror in the 18th century. I know but one code of morality for man whether acting singly or collectively. He who says I will be a rogue when I act in company with a hundred others but an honest man when I act alone, will be believed in the former assertion, but not in the latter. I would say with the poet `hic niger est, hunc tu Romane caveto.' If the morality of one man produces a just line of conduct in him, acting individually, why should not the morality of 100 men produce a just line of conduct in them acting together? But I indulge myself in these reflections because my own feelings run me into them: with you they were always acknoleged. Let us hope that our new government will take some other occasion to shew that they mean to proscribe no virtue from the canons of their conduct with other nations. In every other instance the new government has ushered itself to the world as honest, masculine and dignified. It has shewn genuine dignity in my opinion in exploding adulatory titles; they are the offerings of abject baseness, and nourish that degrading vice in the people.

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 of admiralty jurisdiction wherein a foreigner shall be interested, 2. in cases cognizable before a court martial concerning only the regular officers and souldiers 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 constitution.

-- Art. 8. No person shall be held in confinement more than -- days after they shall have demanded and been refused a writ of Hab. corp. by the judge appointed by law nor 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 remandment or discharge, nor more than -- hours in any place at a greater distance than -- miles from the usual residence of some judge authorised 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 of 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 souldiers 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.

-- I have no certain news of P. Jones. I understand only in a general way that some persecution on the part of his officers occasioned his being called to Petersburgh, and that tho protected against them by the empress, he is not yet restored to his station. Silas Deane is coming over to finish his days in America, not having one sou to subsist on elsewhere. He is a wretched monument of the consequences of a departure from right.

-- I will before my departure write Colo. Lee fully the measures I pursued to procure success in his business, and which as yet offer little hope, and I shall leave it in the hands of Mr. Short to be pursued if any prospect opens on him.-- I propose to sail from Havre as soon after the 1st. of October as I can get a vessel: and shall consequently leave this place a week earlier than that. As my daughters will be with me, and their baggage somewhat more than that of mere voyageures, I shall endeavor if possible to obtain a passage for Virginia directly. Probably I shall be there by the last of November. If my immediate attendance at New York should be requisite for any purpose, I will leave them with a relation near Richmond and proceed immediately to New York. But as I do not foresee any pressing purpose for that journey immediately on my arrival, and as it will be a great saving of time to finish at once in Virginia so as to have no occasion to return there after having once gone on to the Northward, I expect to proceed to my own house directly. Staying there two months (which I believe will be necessary) and allowing for the time I am on the road, I may expect to be at New York in February, and to embark from thence, or some eastern port.

-- You ask me if I would accept any appointment on that side the water? You know the circumstances which led me from retirement, step by step and from one nomination to another, up to the present. My object is a return to the same retirement. Whenever therefore I quit the present, it will not be to engage in any other office, and most especially any one which would require a constant residence from home.

-- The books I have collected for you will go off for Havre in three or four days with my baggage. From that port I shall try to send them by a direct occasion to New York. I am with great & sincere esteem Dr. Sir your affectionate friend and servant,


P.S. I just now learn that Mr. Necker proposed yesterday to the National assembly a loan of 80. millions, on terms more tempting to the lender than the former, and that they approve it, leaving him to arrange the details in order that they might occupy themselves at once about the constitution.