|
|
21. A New Federal Constitution
n the 17th of September, 1787, the national convention dissolved and submitted the result of their labors to the world. The instrument was not without its defects, and as these were all on the side of power and too palpable not to be detected by an intelligent people, it excited among the more jealous partisans of liberty such a tempest of opposition as rendered its acceptance by the nation extremely problematical. It was taken up by special conventions in the several States in the years 1787 and 1788. The contest raged most severely in Virginia, New York, Massachusetts, and New Hampshire. In these States, the public discussions were vehement and agitating; but the question was finally carried in favor of ratification by small majorities in all of them. In Georgia, New Jersey, and Delaware the Constitution was ratified without opposition and by considerable majorities in Pennsylvania, Connecticut, Maryland, and South Carolina. North Carolina would only accept it upon the condition of previous amendments. Rhode Island declined calling a convention and did not accede to the union until May, 1790. Six States ratified without qualification and seven with the recommendation of certain specified amendments.
Mr. Jefferson received a copy of the new Constitution early in November, 1787. He had read and contemplated its provisions with great satisfaction, though not without serious apprehensions from some of its features. His principal objections were to the omission of a declaration of rights ensuring freedom of religion, freedom of the press, freedom of the person under the uninterrupted protection of the habeas corpus, and trial by jury in civil as well as criminal cases; and to the perpetual re-eligibility of the president. His opinions were immediately consulted by his political friends in the United States, and he communicated to them his approbations and objections without reserve. They are found stated at length and in a most interesting manner in a letter to Mr. Madison dated Paris, December 20th, 1787.
"I like much the general idea of framing a government which should go on of itself peaceably without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary, and Executive. I like the power given the Legislature to levy taxes and, for that reason solely, approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very illy qualified to legislate for the Union, for foreign nations, etc., yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal and the former to proportional influence. I am much pleased, too, with the substitution of the method of voting by persons instead of that of voting by states; and I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose or invested with a similar and separate power. There are other good things of less moment.
"I will now add what I do not like. First, the omission of a Bill of Rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of nations. To say as Mr. Wilson does that a Bill of Rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones, all is given which is not reserved, might do for the audience to whom it was addressed but is surely a gratis dictum, opposed by strong inferences from the body of the instrument as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury; because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way -- that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it -- and to have established general right instead of general wrong. Let me add that a Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inferences.
"The second feature I dislike, and greatly dislike, is the abandonment in every instance of the necessity of rotation in office and most particularly in the case of the President. Experience concurs with reason in concluding that the first magistrate will always be re-elected if the Constitution permits it. He is then an officer for life. This once observed, it becomes of so much consequence to certain nations to have a friend or a foe at the head of our affairs that they will interfere with money and with arms. A Galloman or an Angloman will be supported by the nation he befriends. If once elected and at a second or third election out-voted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by the States voting for him, especially if they are the central ones lying in a compact body themselves and separating their opponents, and they will be aided by one nation of Europe while the majority are aided by another. The election of a President of America some years hence will be much more interesting to certain nations of Europe than ever the election of a king of Poland was. Reflect on all the instances in history, ancient and modern, of elective monarchies and say if they do not give foundation for my fears: the Roman emperors, the popes while they were of any importance, the German emperors till they became hereditary in practice, the kings of Poland, the Deys of the Ottoman dependancies. It may be said that if elections are to be attended with these disorders, the seldomer they are renewed the better. But experience shows that the only way to prevent disorder is to render them uninteresting by frequent changes. An incapacity to be elected a second time would have been the only effectual preventative. The power of removing him every fourth year by the vote of the people is a power which will not be exercised. The king of Poland is removable every day by the Diet, yet he is never removed.
"Smaller objections are: the Appeal in fact as well as law, and the binding all persons Legislative, Executive, and Judiciary by oath to maintain that constitution. I do not pretend to decide what would be the best method of procuring the establishment of the manifold good things in this constitution and of getting rid of the bad. Whether by adopting it in hopes of future amendment or, after it has been duly weighed and canvassed by the people, after seeing the parts they generally dislike and those they generally approve, to say to them `We see now what you wish. Send together your deputies again, let them frame a constitution for you, omitting what you have condemned and establishing the powers you approve. Even these will be a great addition to the energy of your government.'
"At all events I hope you will not be discouraged from other trials if the present one should fail of its full effect. I have thus told you freely what I like and dislike merely as a matter of curiosity, for I know your own judgment has been formed on all these points after having heard everything which could be urged on them. I own I am not a friend to a very energetic government. It is always oppressive... After all, it is my principle that the will of the majority should always prevail. If they approve the proposed Convention in all its parts, I shall concur in it cheerfully in hopes that they will amend it whenever they shall find it works wrong. I think our governments will remain virtuous for many centuries as long as they are chiefly agricultural, and this will be as long as there shall be vacant lands in any part of America. When they get piled upon one another in large cities as in Europe, they will become corrupt as in Europe." (ME 6:386)
With the mass of good which it contained, Mr. Jefferson found on a careful scrutiny such a mixture of evil in the new Constitution that he was in doubt what course to recommend to his countrymen. How the good should be secured and the ill avoided was the great question and presented great difficulties. To refer it back to a new convention might jeopardize the whole, which was utterly inadmissible. His first advice, therefore, was that the nine States first acting upon it should accept it unconditionally and thus secure whatever in it was wise and beneficial, and that the four States last acting should "refuse to accede to it till a declaration of rights be annexed." (to Alexander Donald, Feb 7, 1788. ME 6:425) But he afterwards approved the more prudent course of unconditional acceptance by the whole with a concomitant declaration that it should stand as a perpetual instruction to their respective delegates to endeavor to obtain such and such reformations. "At first I wished that when nine States should have accepted the Constitution so as to insure us what is good in it, the other four might hold off till the want of the Bill of Rights, at least, might be supplied. But I am now convinced that the plan of Massachusetts is the best, that is, to accept and to amend afterwards. If the States which were to decide after her should all do the same, it is impossible but they must obtain the essential amendments." (to William Carmichael, May 27, 1788. ME 7:29) And this was the course finally adopted by nearly all the States.
uch as has been said and written of Mr. Jefferson's hostility to the federal constitution, there was not a person in America who set a more solid value on it, even in its original form, nor one who was impressed with more rational anxieties for its adoption. To estimate the force of his convictions upon this point and the cogency of his endeavors to instil the same convictions into his countrymen, it is only necessary to consult the pages of his private correspondence. Adoring republicanism, hating monarchy, he discriminated with the sagacity of a profound statesman between those features of the instrument which were congenial and those which were hostile to his political principles. While he stood firmly for the preservation of the former, he deprecated with equal sincerity any admixture of the latter, neither approving nor condemning in the mass. He was, therefore, neither a federalist nor an anti-federalist, as the advocates and opponents of the Constitution were distinguished. He was an independent asserter of his opinions on questions of national concern, the most profound and interesting that had ever been submitted to the deliberation of the American people; and he had the happiness to see those opinions on almost every point adopted by the nation and incorporated into its frame of government by special emendatory acts. A few passages from his correspondence will evince his anxiety for the fate of the Constitution and his perseverance in the endeavor to obtain the amendments which he deemed so essential.
To James Madison.-- "I sincerely rejoice at the acceptance of our new Constitution by nine States. It is a good canvass on which some strokes only want retouching. What these are I think are sufficiently manifested by the general voice from north to south which calls for a Bill of Rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion, and monopolies. I conceive there may be difficulty in finding general modifications of these suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of religion in all cases, and to abolish standing armies in time of peace and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil cannot be weighed against the multitude wherein the want of them will do evil." (July 31, 1788. ME 7:96)
To George Washington.-- "I have seen with infinite pleasure our new Constitution accepted by eleven States, not rejected by the twelfth, and that the thirteenth happens to be a State of the least importance. It is true that the minorities in most of the accepting states have been very respectable: so much so as to render it prudent, were it not otherwise reasonable, to make some sacrifice to them. I am in hopes that the annexation of the Bill of Rights to the Constitution will alone draw over so great a proportion of the minorities as to leave little danger in the opposition of the residue, and that this annexation may be made by Congress and the assemblies without calling a convention which might endanger the most valuable parts of the system." (Dec. 4, 1788. ME 7:223)
To David Humphreys.-- "The operations which have taken place in America lately fill me with pleasure. In the first place, they realize the confidence I had that whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights. The example of changing a constitution by assembling the wise men of the State instead of assembling armies will be worth as much to the world as the former example we had given them. The Constitution, too, which was the result of our deliberations, is unquestionably the wisest ever yet presented to man, and some of the accommodations of interest which it has adopted are greatly pleasing to me, who have before had occasions of seeing how difficult those interest were to accommodate. A general concurrence of opinion seems to authorize us to say it has some defects. I am one of those who think it a defect that the important rights not placed in security by the frame of the Constitution itself were not explicitly secured by a supplementary declaration. There are rights which it is useless to surrender to the government and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing, the right of free commerce, the right of personal freedom. There are instruments for administering the government so peculiarly trustworthy that we should never leave the legislature at liberty to change them. The new Constitution has secured these in the executive and legislative department, but not in the judiciary. It should have established trials by the people themselves, that is to say, by jury. There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army. We are now allowed to say such a declaration of rights as a supplement to the Constitution where that is silent, is wanting to secure us in these points. The general voice has legitimated this objection. It has not, however, authorized me to consider as a real defect what I thought and still think one: the perpetual re-eligibility of the President. But three States out of eleven having declared against this, we must suppose we are wrong according to the fundamental law of every society -- the lex majoris partis -- to which we are bound to submit. And should the majority change their opinion and become sensible that this trait in their Constitution is wrong, I would wish it to remain uncorrected as long as we can avail ourselves of the services of our great leader, whose talents and whose weight of character I consider as peculiarly necessary to get the government so under way as that it may afterwards be carried on by subordinate characters." (Mar. 18, 1789. ME 7:322)
The ardor and perseverance of Mr. Jefferson in the effort to obtain a supplementary Bill of Rights to the Constitution were soon crowned with success. At the session of 1789, Mr. Madison submitted to Congress a series of amendments which, with various propositions on the same subject from other States, were referred to a committee composed of one member from each State in the Union. The result was the annexation in due form of the ten original amendments to our Federal Constitution. So great was the influence of Mr. Jefferson in forwarding this measure, though absent during the whole time, that he is generally regarded as the father of these amendments. They embraced the principal objections urged by him, without going far enough to satisfy him entirely. By them, the freedom of religion, of speech, and of the press, the right of the people to deliberate and petition for redress of grievances, the right of keeping and bearing arms, of the trial by jury in civil as well as criminal cases, the exemption from general warrants, and from the quartering of soldiers in private dwellings, were pronounced irrevocable and inviolable by the government, and the powers not delegated by the Constitution nor prohibited by it to the States were declared to be reserved to the States or to the people. But the right of habeas corpus was still left to the discretion of Congress, monopolies were not positively guarded against, and standing armies in time of peace were not prohibited. His objections also against the perpetual re-eligibility of the President, although backed by the recommendation of three States, were not sanctioned by Congress. His fears of that feature were founded on the importance of the office, on the fierce contentions it might excite among ourselves if continuable for life, and the dangers of interference, either with money or arms, by foreign nations to whom the choice of an American President might become interesting. But his apprehensions on this head gradually subsided and finally became extinct on witnessing the effect in practice. Alluding to his earlier opinions on this subject, he wrote in his Autobiography in 1821:
"My wish therefore was that the President should be elected for seven years and be ineligible afterwards. This term I thought sufficient to enable him, with the concurrence of the legislature, to carry through and establish any system of improvement he should propose for the general good. But the practice adopted, I think, is better, allowing his continuance for eight years with a liability to be dropped at half way of the term, making that a period of probation... The example of four Presidents voluntarily retiring at the end of their eighth year and the progress of public opinion that the principle is salutary have given it in practice the force of precedent and usage, insomuch that should a President consent to be a candidate for a third election, I trust he would be rejected on this demonstration of ambitious views." (ME 1:119)
here was another question agitated in the councils of the United States during Mr. Jefferson's residence in France which he viewed with as much concern as the adoption of the Constitution. This was the proposition to abandon the navigation of the Mississippi River to the King of Spain for the period of twenty-five years as an equivalent for a treaty of commerce with that nation. John Jay, Secretary of Foreign Affairs, who had been authorized to institute a negotiation with the Spanish government, laid the proposition before Congress as a secret transaction. The whole affair was veiled in darkness and so continued until the year 1818, when a resolution was passed authorizing the publication of the secret journals of the old Congress.
The proposition of Mr. Jay created an angry excitement in Congress. The scheme was resisted with great warmth by the States of Virginia, North Carolina South Carolina, Maryland, and Georgia on the following grounds: 1. It would dismember the union. 2. It would violate the compact of the national government with those States who had surrendered to it their western lands. 3. It would check the growth of the western country by depriving the inhabitants of a natural outlet for their productions. 4. It would depreciate the value of the western lands and sink proportionally a valuable fund for the payment of the national debt. 5. It would be such a sacrifice for particular purposes as would be obvious to the least discerning.
The proposition was sustained, however, by all the New England States, including New York, New Jersey, and Pennsylvania. These States moved in solid phalanx and in silence against every attempt to defeat, alter, or amend the proposed terms of negotiation. The opposition were in despair, when it occurred to them that as the assent of nine States was necessary by the confederation to form treaties, the instructions given to Mr. Jay were unconstitutional, inasmuch as seven States only had voted them. A resolution was therefore introduced declaring the original vote which had been taken incompetent to confer treaty-making powers. But the resolution was negatived by the same States in the same mysterious manner. A resolution was then offered to remove the injunction of secrecy, which shared the same fate. Finally, after a heated and protracted altercation, the minority succeeded so far as to obtain the authority to treat for an entrepot at New Orleans and for the navigation of the Mississippi in common with Spain down to the Floridas.
A hint of these transactions having reached the ears of Mr. Jefferson in Paris, he was exercised with the greatest inquietude and alarm. He considered the abandonment of the navigation of the Mississippi as ipso facto a dismemberment of the union, and he improved every occasion in his letters to America to impress on the leading members of the government the ungrateful character and suicidal tendency of the measure. A single specimen, found in a letter to Mr. Madison dated January 30, 1787, will suffice to display the general tenor of an active and extensive correspondence for several months on this vitally interesting question.
"If these transactions [i.e., the insurrections in America] give me no uneasiness, I feel very differently at another piece of intelligence, to wit, the possibility that the navigation of the Mississippi may be abandoned to Spain. I never had any interest westward of the Allegheny, and I never will have any. But I have had great opportunities of knowing the character of the people who inhabit that country. And I will venture to say that the act which abandons the navigation of the Mississippi is an act of separation between the Eastern and Western country. It is a relinquishment of five parts out of eight of the territory of the United States, an abandonment of the fairest subject for the payment of our public debts, and the chaining those debts on our own necks in perpetuum. I have the utmost confidence in the honest intentions of those who concur in this measure; but I lament their want of acquaintance with the character and physical advantages of the people who, right or wrong, will suppose their interests sacrificed on this occasion to the contrary interests of that part of the confederacy in possession of present power. If they declare themselves a separate people, we are incapable of a single effort to retain them. Our citizens can never be induced, either as militia or as soldiers, to go there to cut the throats of their own brothers and sons, or rather to be themselves the subjects instead of the perpetrators of the parricide. Nor would that country requite the cost of being retained against the will of its inhabitants, could it be done. But it cannot be done. They are able already to rescue the navigation of the Mississippi out of the hands of Spain and to add New Orleans to their own territory. They will be joined by the inhabitants of Louisiana. This will bring on a war between them and Spain, and that will produce the question with us whether it will not be worth our while to become parties with them in the war in order to reunite them with us and thus correct our error? And were I to permit my forebodings to go one step further, I should predict that the inhabitants of the United States would force their rulers to take the affirmative of that question. I wish I may be mistaken in all these opinions." (ME 6:65)
The right of the United States to the free navigation of the Mississippi in its whole extent and the establishment of that right upon an immovable basis was a subject which early engrossed the attention of Mr. Jefferson. He persevered in the effort through a period of fifteen years in different public stations, and his agency in producing the final result was scarcely less distinguished, though less direct and efficacious, than in procuring the acquisition of Louisiana. The question was not definitively settled until 1803, when, being at the head of the nation, he appointed Mr. Monroe minister to Madrid for the express purpose of concluding a final arrangement with that government covering all the points at issue growing out of the subject. The mission was as honorable as it was successful.
Top | Previous Chapter | Next Chapter | Front Page
© 1997 by Eyler Robert Coates, Sr.