II. Text as Revised by Madison, Late in Life
New York Feby. 4. 1790
Your favor of Jany. 9. 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 to which your reasonings carry 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 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 for the exercise of their will do not live beyond the term of 19 years: to this term then is limited the validity of every act of the Society; nor can any act be continued beyond this term without an express declaration of the public will.” 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 some stipulation, which renders them irrevocable at the will of the Legislature
3. Laws involving no such irrevocable quality.
1. However applicable in theory the doctrine may be to a Constitution, it seems liable in practice to some weighty objections.
Would not a Government ceasing of necessity at the end of a given term, unless prolonged by some constitutional Act, previous to its expiration, be too subject to the casualty and consequences of an interregnum?
Would not a Government so often revised become too mutable and novel to retain that share of prejudice in its favor which is a salutary aid to the most rational Government?
Would not such a periodical revision engender pernicious factions that might not otherwise come into existence; and agitate the public mind more frequently and more violently than might be expedient?
2. In the second class of acts involving stipulations, must not exceptions at least to the doctrine, be admitted?
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 debt against the living who take the benefit of them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the authors of the improvements.
But a case less liable to be controverted may perhaps be stated. Debts may be incurred with a direct view to the interest of the unborn as well as of 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 debt incurred by the U. States. In these instances the debts might not be dischargeable within the term of 19 years.
There seems then to be some 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 may require it. Mutual good may be promoted by it. And all that seems indispensable in stating the account between the dead and 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 by their predecessors would bear a liquidation even on this principle.
3. Objections to the doctrine, as applied to the third class of Acts must be merely practical. But in that view alone they appear to be material.
Unless such temporary laws should be kept in force by acts regularly anticipating their expiration, all the rights depending on positive laws, that is most of the rights of property would become absolutely defunct, and the most violent struggles ensue between the parties interested in reviving and those interested in reforming the antecedent state of property. Nor does it seem improbable that such an event might be suffered to take place. The checks and difficulties opposed to the passage of laws which render the power of repeal inferior to an opportunity to reject as a security against oppression, would here render the latter an insecure provision against anarchy. Add to this that the very possibility of an event so hazardous to the rights of property could not but depreciate its value; that the approach of the crisis would increase the effect; that the frequent return of periods superceding all the obligations depending on antecedent laws and usages, must by weakening the sense of them, co-operate with motives to licenciousness already too powerful; and that the general uncertainty and vicisitudes of such a state of things would, on one side, discourage every useful effort of steady industry pursued under the sanction of existing laws, and on the other, give an immediate advantage to the more sagacious over the less sagacious part of the Society.
I can find no relief from such embarrassments, but in the received doctrine that a tacit assent may be given to established Governments and laws, and that this assent is to be inferred from the omission of an express revocation. It seems more practicable to remedy by well constituted Governments, the pestilent operation of this doctrine, in the unlimited sense in which it is at present received than it is to find a remedy for the evils necessarily springing from an unlimited admission of the contrary doctrine.
Is it not doubtful whether it be possible to exclude wholly the idea of an implied or tacit assent, without subverting the very foundation of Civil Society?
On what principle is it that the voice of the majority binds the minority? It does not result I conci[e]ve from a law of nature but from compact founded on utility. A greater proportion might be required by the fundamental Constitution of Society, if under any particular circumstances it were judged eligible. Prior therefore to the establishment of this principle, unanimity was necessary; and rigid Theory, accordingly presupposes the assent of every individual to the rule, which subjects the minority to the will of the majority. If this assent cannot be given tacitly, or be not implied where no positive evidence forbids, no person born in Society, could on attaining ripe age, be bound by any Acts, of the majority, and either a unanimous renewal of every law would be necessary, as often as a new member should be added to the Society, or the express consent of every new member be obtained to the rule by which the majority decides for the whole.
If these observations be not misapplied, it follows that a limitation of the validity of all Acts to the computed life of the generation establishing them, is in some cases not required by theory, and in others not consistent with practice. They are not meant however to impeach either the utility of the principle as applied to the cases you have particularly in view, 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 to the world in a law of the U. States, and always kept in view as a salutary restraint on living generations from unjust and unnecessary burdens on their successors. This is a pleasure however which I have no hope of enjoying. [The spirit of philosophical legislation has not prevailed at all in some parts of America, and is by no means the fashion of this part, or of the present Representative Body.1 The evils suffered or feared from weakness in Government and licenciousness in the people, have turned the attention more towards the means of strengthening the powers of the former, than of narrowing their extent in the minds of the latter. Besides this]2 it is so much easier to descry the little difficulties immediately incident to every great plan, than to comprehend its general and remote benefits, that further light must be added to the Councils of our Country before many truths which are seen through the medium of philosophy, become visible to the naked eye of the ordinary politician.
Tr (DLC: Madison Papers); in Madison’s hand and docketed by him: “(Copy) Madison Js to Th Jefferson Feby. 4. 1790” with some deletions in the form of copyists’ errors and two (noted below) made during or after the revision.
1. Madison first wrote “the present House of Representatives” and then altered the phrase to read as above.
2. Brackets inserted in MS by Madison, who interlined the word “omit” at the beginning of the passage. Madison evidently made this notation as a direction to George Tucker, who obeyed the injunction but without indication of omission. See Editorial Note.