James Madison Papers
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From James Madison to Thomas Jefferson, 4 February 1790

To Thomas Jefferson

New York Feby 4. 1790

Dear Sir

Your favor of the 9th. of Jany. inclosing one of Sepr. last1 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:2 Nor within that limitation, can any declaration of the public will be valid which is not express.”3

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 Government4 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 authentic5 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.6

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 benifit of posterity: such perhaps is the present debt of the U. States, which far exceeds any burdens which the present generation could well7 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 repeal8 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 reverence9 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.10

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 assent11 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 presupposes 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,12 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 assent13 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 have nothing to add at present but that I remain always and most affectly. Yours

Js. Madison Jr

[Revised Text]

New York Feby. 4. 1790

Dear Sir

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 & 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 & 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 & 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 wd. increase the effect; that the frequent return of periods superceding all the obligations depending on antecedent laws & usages, must by weakening the sense of them, co-operate with motives to licenciousness already too powerful; and that the general uncertainty & vicicitudes 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 & 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 recd. 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 conc[e]ive 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 & 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. 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 this14 It is so much easier to descry the little difficulties immediately incident to every great plan, than to comprehend its general & 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.

RC (DLC: Jefferson Papers); Tr (DLC). RC docketed by Jefferson and noted as “recd. Feb. 24.” Below the docket is a note by Nicholas P. Trist: “Given to N. P. T. by James Madison, Montpellier May 22. 1827. / ‘Mr Jefferson returned to me my letters to hi⟨m⟩ (some of wh. however are missing, wh. perhaps he destroyed). Of some of those returned, I find I have copies; among them, one on the subject of his views with regard to the right to bind future generations. This I will give to you.’” As this note indicates, JM already had a copy of this letter when Jefferson’s letters were returned to him at an undetermined date. That the Tr was made no earlier than 1799 is certain, for the paper bears a clear watermark of that year. The handwriting is characteristic of JM’s vigorous years. Until Boyd published the RC in 1961, all previously published versions of this letter had followed the Tr (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950—). description ends , XVI, 146–54; George Tucker, The Life of Thomas Jefferson … [2 vols.; Philadelphia, 1837], I, 292–96; Randall, Life of Jefferson, III, 592–94; Rives, Life of Madison, III, 119–21; Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , I, 503–6; Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , V, 437–41).

1See PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , XII, 382–87, 469.

2JM here deleted: “nor can any act be continued beyond this term without a positive [four or five words illegible] by the without an express.”

3This is a paraphrase, rather than an exact quotation.

4JM here deleted “expiring of necessity.”

5JM here deleted “vote of the.”

6This passage originally read: “The improvements made by the dead form a charge against the living which they can no otherwise satisfy than,” etc.

7JM substituted this word for either “justify” or “justly,” which he deleted.

8JM here deleted: “as less security agst oppression than an opportunity to reject, would here render the.”

9JM deleted either “sense of” or “source of” and interlined this word.

10“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising and the moneyed few, over the industrious and uninformed mass of the people” (The Federalist No. 62, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , X, 539).

11JM here deleted: “is to be inferred, where at least in most cases.”

12JM here deleted: “no persons attaining ripe age would [could?] not [illegible word].”

13JM here deleted “of these be obtained” and interlined the next five words.

14At a later time JM placed brackets around the passage beginning “The spirit of philosophical legislation” and ending at this point. He also wrote “omit” at the beginning of the bracketed passage. This was evidently an editorial direction to George Tucker, who obtained the Tr from JM and published it (omitting the bracketed passage) in his Life of Jefferson (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, 1950—). description ends , XVI, 146, 154). Randall (who followed Tucker’s version) and Rives also omitted this passage, but Hunt published the letter in full.

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