Paris, August 28, 1789
Dear Sir,
—My last to you was of July 22. Since that I have received yours of May 27, June 13 & 30. The tranquillity of the city has not been disturbed since my last. Dissensions between the French & 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, 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 & 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 & done more mischief. 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 everything. No taxes are paid, and no money can be borrowed. Mr. Neckar 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 & 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 expenses. 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 & 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 & justices, general & 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, & the cities a municipal body for municipal government, all founded on the basis of popular election. These subordinate governments, tho completely dependent on the general one, will be intrusted 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 legislature will be allowed them. In short ours has been professedly their model, in which such changes are made as a difference of circumstances 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 & 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 & ecclesiastical aristocracy) begins to raise it’s head. The lees too of the patriotic party, of wicked principles & 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, & intriguing at London, the Hague, & 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 anything 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 & burst so as to break up the assembly before anything definite 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 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 its 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 & 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 & 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 anything 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 & money to save us, has opened her bosom to us in peace, and received us almost on the footing of her own citizens, while the other has moved heaven, earth & 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 to 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 & modern civilization, but exploded & held in just horror in the 18th century. I know but one code of morality for men 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 cavato.” 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 into them: with you they were always acknoleged. Let us hope that our new government will take some other occasions to shew that they mean to prescribe 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 shown 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 & 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 anything 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 & souldiers of the U. S. or members of the militia in actual service in time of war or insurrection, & 3, in impeachments allowed by the constitution. Art 8. No person shall be held in confinement more than days after they shall have demanded & been refused a writ of Hab. corp. by the judge appointed by law nor more than days after such a writ shall have been served on the person holding him in confinement & 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 authorized 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 & their own inventions in the arts, for a term not exceeding years but for no longer term & 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 & subsistence shall have been last voted by Congress, and all officers & 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, & 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, & which as yet offer little hope, & 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: & shall consequently leave this place a week earlier than that. As my daughters will be with me, & 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 of the water? You know the circumstances which led me from retirement, step by step, & 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. Neckar proposed yesterday to the National assembly a loan of 80 millions, on terms more tempting to the lender than the former, & that they approved it, leaving him to arrange the details in order that they might occupy themselves at once about to the constitution.
(Source: http://oll.libertyfund.org/)
August 26, 1789
Attended the Senate the minutes were lengthy but I was surprized to find no notice taken, of my presenting the Draught of Lancaster the letter, and my nomination of the other places in Pennsylvania, altho I had put in Writing, the Whole Matter and given it to the Secretary. When he had read about half way of his Minutes, I rose and called on him to know Why he had not inserted them. he said he was not come to them but seemed much confused. he however got the letter and handed it to the President. to read it and it was read. after this the nomination was read, and Butler opposed their being put on the minutes I however had a Vote for their going on. Mr. Morris was all this While out. he was of the Committee on the Compensation bill. When he came in Otis the Secretary came to him and wispered something to him God forgive me if I heard wrong or apprehended Wrong, but I thought he said Maclay has got that put on the minutes Mr. Morris, went out and staid out untill Senate adjourned leaving his hat & Stick (perhaps he was writing letters in the adjoining room) he called in as the Senate rose and seemed unwilling to leave me in the room with Otis. I went with him to the Door but returned and spoke to Otis. all this is perhaps the Effect of over observation. I however care not. the penal Law was taken up. Elsworth had a String of Amendments for a While he was listened to, but he wraught himself so deep in his niceties and distinctions as to be absolutely incomprehensible he fairly tired the Senate and was laughed at. I think he may be well stiled the Endless Elsworth. I forgot to minute Yesterday that the Treasury bill was taken up. a number of the Senate had recanted again on this Bill, and were against the power of the President's removing, and had amended accordingly. the H. of R. sent us up an d Adherence. and now Mr. Morris proposed to me to leave the House I would neither do this nor change my mind and he was angry. this was before we had the difference on the Compensation Bill. last night there was a meeting of the Pennsylvania delegation. on the Subject of fixing the permanent Residence, there was little of Consequence said. they agreed however mentioned their former agreement to Vote for every place that should be nominated in Pennsylvania. Clymer said some things that savoured more of independence than any of them. Scot declared he would put himself intirely in their hands and move anything that should be agreed on. Mr. Clymer declared for the Potowmac, rather than stay here. I understood him that he thought this politically right. Fitzsimons and the Speaker seemed to second everything that Mr. Morris said. Hartley was for Susquehannah and York Town. But indeed I think the Whole Measure likely to be abortive. They have brought the Matter forward but have no System. {I saw this but did not hazard a single sentiment on the Subject, indeed I could not without implying some kind of Censure. I called this morning and indeavoured to put Mr. Scott on tenable ground in the affair of removal, & left him in a proper way of thinking. at least if he should be defeated, to advance nothing but what is defensible.}
New York, August 9, 1789
My Dr. Sir
I feel myself much indebted to you for your observations on the Judicial Bill which have arrived in good time for me to avail myself of them-- they in general coincide with my sentiments & I shall use my endeavours to promote the alterations you have suggested.
My time is so much employed & I have so many Letters to answer that I am deprived of the pleasure of answering your's fully & must defer it to another opportunity.
Some of your objections have been in some measure obviated by the Senate who have made considerable alterations in the Bill as you must have observed by the Bill I sent you some weeks ago, as it passed the Senate. It has been the order of the day a fortnight past with us, but as we have had various other business we were desirous of terminating before we entered on this, we have postponed it from day to day & probably shall not go upon it for another week.
The Committee on Amendmts. have reported some, which are thought inoffensive to the federalists & may do some good on the other side; N. Cara. only wants some pretext to come into the Union, & we may afford that pretext by recommending a few amendmts.
There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the Govt. I am sorry our opinions differ so widely on the question of removability: had I not formed my opinions mine on very mature reflection, I should have had much reason to waver after reading your observations: your experience in politics & the unbiased state of your Judgment, not warped by the warmth of debate as we were, [lined out] enable you to form a proper opinion upon the Subject: I am pleased however to find that your arguments go altogether upon expediency & not upon the constitutional right: my desire to guard the Constitution from the dangers of legislative constructions, (which may hereafter be productive of considerable injury to our State, whose representation in point of numbers is weak & unequal to that of any other part of the Union) animated me with a peculiar warmth of opposition. There are men of ingenuity in our house, whose tendency to establish a monarchical govt. & whose abilities to promote it would go great lengths in altering the constitutn. essentially were they allowed to give constructive powers to the Executive branch of the Govt. They acknowledge that the power in question is not explicitly given to the Presidt. but they contend that, as it is an Executive power, he must have it of course. It is not difficult to foresee to what this implication may hereafter tend, as there are several powers of an Executive nature not mentioned in the Constitution & not given to any branch, which every one will admit the Presidt. ought not to possess. Mr. Madison is a great friend to a strong Govt.-- his great abilities will always give him much weight with the administration-- I beleive he now is much in the confidence of the President & he will hereafter stand a chance of being President himself, in the mean time, he will be a leading man in the administration Cabinet Council. his mildness of character & a certain timidity which accompanies his political conduct render him unfriendly to a republican govt.-- The Massachusetts members were divided-- but Ames & Sedgwick who expect soon to see Adams Presidt. & beleive they will then be prime ministers exerted themselves to carry the question: by their influence, Mr. Dalton, in the Senate, was brought over & made the numbers equal, & the Vice President gave the casting Vote. The influence the great body of the people in Massachts. have in their state govt. & the late insurrection of Shays co-operate to make those Gentmen. great favorers of monarchy: such being the state of things, it is a question of considerable importance whether the grant of such a power will promote the prosperity of our State: I am inclined to think not. Should Adams obtain the Presidency ( & I dare say he will in a few years,) such is the infatuation of the New Engd. States in his favor, that I suspect he will have it for life: His ambition is considerable & his partiality to those States no less so. What chance then will a Southern man have of being appointed to an Office? He will nominate his own friends & should the Senate reject them, & compel him to nominate a person disagreable to himself, he will dismiss the officer so appointed on the first Vacancy recess of the Senate & supply the Vacancy himself; besides the Senate will be very seldom be disposed to reject any nomination made by the President, who having the thus the sole power, as it were of appointmt. to all Offices & the sole power of dismission, will be enabled to establish such a System of influence that his responsibility will be a mere shadow. All the great Officers of govt. will be his dependants, open-mouthed on all occasions agst. the Senate, should they ever pretend to differ with the Presidt. on any constitl. point, clamorous agst. any member of the other house, who shall presume to thwart the Presidt. him in any design. These Officers & their friends from one end of the Continent to the other will form a Phalanx, dangerous to any Competitor who may have the folly to be a Candidate for the Presidency; As they would very probably be all dismissed from office to make way for the favourites & creatures of the Successor, their interest would prompt them to use every stratagem to procure the re-election of their Patron & Creator. Every engine would be set to work-- abuse of the Competitor-- panegyrick of the Gentleman in office, bribery, menaces & cabals would all be employed & would undoubtedly succeed-- Every Collector Naval Officer & Surveyor from New H. to Georgia, with all their relations & friends will be interested in his re-election.
Contemplate the Subject in another point of view: It is generally thought that another President will never be elected, by Electors, because it is supposed that no man in Ama. (except our Presidt.) will unite the suffrages of a majority of the Electors: in that case the H. of Reps. are to make the Choice. The New Engd. States united will always carry their point-- the Southn. states will stand no chance: The Cabal in the H. of Reps. will be interested in supporting the President of their appointmt.-- this is natural-- we are ashamed to acknowledge the injudiciousness of our choice & therefore, right or wrong, the Party who have brot. abut. the Election will on all occasions form a strong phalanx in the H. of R. in suppt. of the President-- their friends will in return receive all the best Offices under the Govt.-- it will be always an easy thing to remove the present Incumbents-- calumny-- detraction-- whisperings will be successful-- the Presidt. will dismiss, & the people will take it for granted, all is right-- but admitting that they are dissatisfied-- what can be done-- impeach the President? for what? for exercising a constitutional prerogative-- that would be idle indeed. This combination being established between this Monarch & his Treasy. bench, the next thing wod. be to cry down the Senate-- alarm the People about Aristocracy, quote the Examples of Denmark & Sweden. If the Senate don't crouch to the President-- all his officers will set themselves to work to undermine their it's authority & under them it despicable-- if the Senate it is opposed to the H. of Reps. the Treasury Bench will reprobate it for thwarting that house which is the immediate representative of the People-- it will be repeated (for it has already been said in Congress) that the H. of Rep. & the Presidt. are more nearly related to the People than the Senate-- that the Senate are an Aristocratic body, their doors shut, voting for Officers in the dark mode of ballot-- that there is no responsibility among them-- that they don't represent the People but the States-- that the great danger is to be apprehended from that quarter & not from the President, who is the Man of the People (shall we say so of Adams?) that they will generally be the opulent men of each State & are therefore to be dreaded. Thus will that useful body be abhorred by the People & lose all its weight in the Govt.-- thus will the Constitl. barrier against the tyrannical incroachmts. of the Chief Magistrate on the one hand & the intemperate proceedings of the popular branch on the other be pulled down & annihilated, & thus, finally will the whole powers of Govt. be absorbed by the Presidt. & his pretorian Cohort in the H. of Repress. You will say all this is supposition-- true-- let us agree then that in respect to expediency, much may be said on both sides-- & proceed to examine the subject on its constitutional ground.
It is very evident that the federal constitution is a compilation of the State Constitutions: there are few clauses in it, particularly those which relate to the Structure of the several branches of the Govt. which are not copied nearly verbatim from the State Constitutns. The mode of appointmt. to offices by the Presidt. with the advice of the Senate is copied from a great number of the Constitns. where the Govr. & Privy Council or Council of appointmt. have this power. the Impeachment by the H. of Reps. & the trial of Impeachmts. by the Senate are also imitated from the Govts. of almost all the States-- you will admit those that the rule of construction from analogy will here strongly apply-- the federal Constitn. being then silent as to removability ([lined out] unless by Impeachmt.) the question occurs how are officers to be removed? you say, by the President-- I then ask, can the Governor of any one State in the union remove an officer at pleasure? he certainly cannot. In one or two states, the Governor & Council appoint another officer, which operates as a supersedure (if I may so call it) of the person in office, but the Govr. alone, tho he can in some instances suspend, can in no one instance remove. In some of the States, an officer can be displaced only by impeachmt. in others by address of the Legislature, & again in others by the Govr. & executive Council. Examine the new Constitn. of Georgia, every clause of which relating to this question, is copied from the federal Constitution & tell me whether you think the Govr. of Georgia has this immense Power: I puzzled Mr. Baldwin not a little by asking him this question, immedly. after he had made a long oration to prove the constituty. of this power in the President. Can there be two modes of construction, one for the Const. of a State & the other for the Constit. of the U. S. when the same words & sentences are employed? I think not: Mr. Baldwin was clearly of opinion that the Govr. of Georgia has not this power.
But you will ask whether the Constitn. has vested this power in the Senate joined with the Presidt.-- the Implication is certainly stronger in favor of the Senate, because they appoint, & it seems reasonable that they shod. remove, for the same judgment is requisite to determine whether one man should be removd. from an office as to determine whether another is fit to be appointed to it. Besides, the Senate, consisting of members from every State, may be deemed more interested in the continuing in office a proper man, than the President; & as the officer can be a countryman but of two of the Senators there is less reason to apprehend an improper spirit of favoritism & partiality in the Senate-- than in the President. the Senate may also be supposed to contain more general knowledge of characters than the Presidt.-- they come from all parts of the Union, mix in society & know the public sentiments, whereas the Presidt. lives recluse & converses only with a few favorites, from whom he will generally derive all his information of character. Again, as the Presidt. & Senate jointly appoint, it appears that if these be any other mode of removal than by impeachmt., the proper mode shod. be to remove the officer by the appointmt. of another, which must be by the concurrence of the Senate. Here I will admit that some inconvene. might result from this doctrine, & therefore I gave in the house a very different interpretation to the Constitution in the House from those who contended on the one hand that the power of [space in original text]--tion belonged to the Presdt. alone & those who insisted that it was in the Presd. & Senate jointly: and altho my exposition was only supported by myself & Mr. Page, yet the friends to the former opinion confessed that mine was more consistent & more constitutional than the latter. Without adverting to expediency, but confining myself strictly to the Constitution, I contended that Officers could only be removed by Impeachment: I supported my opinion on these grounds: 1st. the Constit. says, "all officers shall be removed by impeachmt." & in no part of the Constitn. does it say that they shall be removed in any other mode expressed circius est exclusio alterius. 2dly. this is conformable to the State Constn. for no officer can be displaced in any of the States, unless by Impeachmt. or by virtue of a power expressly given to the Executive Council or the Legislature, as in Pensylva. & Maryland; in the latter the Treasurers hold their places during the pleasure of the Assembly. 3dly The mode of removal must be uniform; if it be given to the Presidt. alone in one case it must be likewise given in every other, & the Convention could never have had it in contempln. that the Treasury should be so much under the immediate influence of the President as it wod. be if the Officers of that Departmt. held their places during his pleasure. 4ly. the Enumeration of the Powers of the Presidt. in the Constitn. is a direct & strong implication that he shod. have no other powers than those enumerated, because, if vesting him with the Executive power was of itself sufficient to convey all executive powers, the enumern. wod. be abursd the same observation applys to the Senate. Had this power been incontemplat. how easy it wod. it have been to have added, after declaring that the Presidt. shod. nominate & by & with the advice & consent of the Senate appoint, these words, " & remove, when necessary," all officers & ca. or after saying that the President should "commission all officers" add, "during his pleasure:" from the comparison with the State Constitutions & the omission of any such power, I am perfectly convinced either that there were in the Convention men who wished this power shod. be vested in the President, but were afraid to give it explicitly, least the people shod. reject the Constitution & therefore left it to be exercised by implication, or that it was never [lined out] in the contemplation of the Convention: I have indeed heard it said that it was there understood that the Presidt. & Senate would appoint a new officer & thus supersede the old one: Aug. 10th.-- it is very certain that the matter power been agitated in Convention & there understood to be in the Presidt. alone, or shod. have been told it in the debate. For these & other reasons which I have not leisure to detail I am of opinion that constituy. an officer can only be removed by Impeachmt.-- to this doctrine it was answered that the most alarming inconveniencies wod. result from such a doctrine, because even a tide-waiter wod.only be removed only by Impeachmt., wod. be absurd, & that it wod. be dangerous to liberty to give to the officers of govt. so durable a tenure as that of good behavr. & that moreover it was agst. the Constitn. which only contemplated such a tenure as applicable to the Judges. I rescued my principle from these defects by stating: 1st. that my doctrine wod. not extend to a tide-waiter, because Congress wod. by Law vest the appointmt. & conseqy. the removal of all inferior Officers in the Presidt. alone. 2. that it was easy to limit the duration of the great Officers by making their appointmt. biennial or for a longer period as is done in all the States which the Congress might do, when they established the Offices. 3d. that the Constitun. by declaring that the Judges shod. hold their places during good behavr. intended to prohibit Congress when it instituted the Judicial Departmt. from making their appointmts. limited, as they are in several of the States, for to a term of years & manifestly shewed that the Executive officers might be limited: my conclusion therefore was that with respect to all inferior officers a Law pass vesting the appointmt. & removal solely in the Presidt. & that the great & principal Officers of Govt. shod. be appointed for a limited time, during which they can shod. only be removed by impeachmt.-- If you read the constitutn. with attention & compare it with that of the States, you will be of opinion with me that however expediency may dictate another principle, this is the constitl. line of proceeding. I observed some time ago that our State shod. be extremely cautious how any innovation is made in the Constitn.-- at present we know what govt. we live under & the Extent of the Sacrifice made-- our State Convn. perused the federal constitn. & concurred in it, as it stood. While it remains, unaltered, we may not have no reason to apprehend any incroachments on our state-rights-- but if on the other hand, it is in the power of a few ingenious men & able orators to new-model the powers of the govt. by construction & implication & give it a different shape from the one it had when we adopted it, there's no saying to what lengths these alterations may be gradually carried in time: I observed that our State is weak in the Union-- it certainly is-- we have no state to support our peculiar rights, particuy. that of holding Slavery, but Georgia: She will be generally represented by men of moderate abilities-- indeed I fear the smallness of the pay will not entice our best men to make the necessary sacrifices & come to Congress: No. Cara. voted with the other states agst. us in Convention: Virga. is our greatest enemy. the other States are all agst. us; but while the Constitn. remains unaltered, they can't touch our negroes for 20 years & perhaps not constitutionally after that time; for I shall support the Amendmts. proposed to the Constitn. any exception to the powers of Congress shall not be so construed as to give it any powers not expressly given, & the enumeration of certain rights shall not be so construed as to deny others retained by the people-- & the powers not delegated by this Constn. nor prohibited by it to the States, are reserved to the States respectively; if these amendts. are adopted, they will go a great way in preventing Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may even within the 20 years by a strained construction of some power embarass us very much. I had this in contemplation not a little, in my opposition to the Legislature's giving judicial constructions on the Constitutn.
I have read your observations on the Judicial with attention & having somewhat more time than I thought, I shod. have had at the outset of this Letter will briefly acquaint you what impressions they have made on my mind. 1st. Objection to the District Judge holding special Courts. Ansr. occasions may occur when they may be very necessary-- the Seizure of goods-- a Ship-- which it may be proper & expedient to condemn forthwith-- a crime committed on the High Seas-- & the witnesses, who are Sailors, about to depart-- you recollect that the District Court is a Cot. of Admty.-- The Judge will not hold them unnecessarily on accot. of the additl. trouble-- Great inconvs. might ensue, if he had not that power-- if it is found oppressive, the Legislate. can remedy it. The District Court has no material Jurisdiction beyond maritime causes & causes of Seizure; therefe. the dangers cannot result which you apprehend. nor can there be apprehensions from the Judge's power to remove hold the Court where he thinks proper for the above reasons-- On the mode of adjourning the Cot. where the District Judge does not attend, I entirely agree with you & had made a note similar to your's before I saw your observation.
The Senate have altered the Clause respecting Quakers, [confor]mably to your Sentiments.
The Trial of fact shall be by Jury.
As the Bill has been alter'd by the Senate, it stands now "the trial of issues in fact" shall be & ca. In general the Law as well as the fact shod. be left to the Jury-- but when we consider that the causes triable in these Cots. will generally turn on the Laws of nations, the construction of Treaties, on the clashing rights of different states, on the interests of foreigners, agst. whom that order of people of whom our Juries are formed is generally prejudiced, on the interests of citizens of another state than that in which the cause is tried, in which case the Jury will be partial to their own immediate fellow-citizens & perhaps acquaintances, a question may arise (& I confess my opinion is not settled) how far the Senate have not been judicious in leaving the Fact alone to the Jury, more especially as there is no appeal of fact to the Supreme Cot. but only of Law.
Retrospect as to Contracts. I have sometime since sounded the [space in original text]Members on this point, but they generally disapprove of the restriction: less danger will result from a general operation of the Law than might have been apprehended; the establishmt. of Circuit Cots. will facilitate the trial of causes in the States where the debts may be due & by Juries of those states; & there is no appeal of fact-- the Sum for which Writs of Error will lie to [torn] Cot. may be a large one.
If the Defendt. claims under a Grant of another State.
Your objection is that the Plt. shod. have the same right: The alteration has been made in the Senate, conforme. to your opinion.
Suits agst. Ambassadors-- [space in original text]{I agree with you in your observns. on these 2 points.
The United States not to pay costs--
Where is drawn in question the Validity of a Treaty & ca. you think the appeal shod. be reciprocal-- I have seen some observations from Mr. Pendleton of Virga. on the Jud. Bill & he makes precisely the same objection. The reason on which the Clause is grounded is that a citizen can't complain if his own State Court decides agst. him; that this Bill does not put him in that respect in a worse plight than he was before: on the other hand the Clause is absolutely necessary for the preservation of the federal governmt.-- there is much weight in your observns. & I am not clear but you are right: my opinion is not fixed.
Mr. Elsworth who was principally concerned in drawing the Bill is the Judge of the State of Connecticut of much reputation for legal knowledge: he is a man of remarkable clearness of reasoning & generally esteemed a man person of abilities. I met him last night & took notice of some of your objections which he endeavoured to refute. He observed that the convention had in view the condition of foreigners when they framed the Judicial of the U. States. The Citizens were already protected by [torn] Judges & Courts, but foreigners were not. The Laws of nations & Treaties were too much disregarded in the several States-- Juries were too apt to be biased agst. them, in favor of their own citizens & acquaintances: it was therefore necessary to have general Courts for causes in which foreigners were parties or citizens of difft. States; hence arises this partiality which offends you: perhaps it may be card. too far.
The mode of drawing Jurors shod. be according to the customs & Laws of the sevl. states: Mr. Elsworth seemed to have no objections to that, but remarked that a very ignorant Jury might be drawn by Ballot.
Special Jury in appeals to the Supreme Court: There is no appeal of fact to the Sup. Cot.
The Return Days ought to be fixed in the Act: I will mention this-- I have not much considered this point.
I shall do every thing to serve Capt. Hall, when an opportunity offers. at present there is nothing that will suit him.
I sent you the Judicial Bill as it passed the Senate-- if you have leisure, send me your opinions of it, which may arrive before we pass it.
I dined in company with Henry yesterday-- he looks [well & ] likes his Situation much.
[This will be] delivered you by Mr. John Marsdan Pintard, who has a Law Suit in Charleston-- Mr. Boudinot, his uncle has requested me to recommend him to a Lawyer of Eminence; I therefore take this mode of introducing him to you: his is a gentleman of good connextions in this City.
I have much more to say, but no more time-- Mrs. Smith joins me in best regards to your good Lady & yourself & I am particularly
My dr. Sir
your's with sincty.
New York, August 7, 1789
My dear sir
I am favoured with your letters of the 28th & 29th of July: the former I shall communicate to the President previously to the election of Judges, for I sincerely hope Judge [James?] Sullivan will obtain the office of district Judge for Massachusetts. political opinions however good, are generally heretical, if not sanctioned by the voice of a majority: & if bad, thus sanctioned are considered as divine. Mr. Sullivan's politics at this time, accord with the sentiments, as I conceive of the people, & his conduct as a Judge has has, as I have always understood been unexceptionable.
With respect to the establishment of theatres, various opinions are entertained of their good and bad effects, even by vertuous republicans: if they can be so regulated as to instruct us in the knowledge of man, & to discriminate his vertues from his vices & whilst they afford amusement will not excite a spirit of dissipation, it is undoubtedly both wise & politic to admit them: but on the other hand, if they have a tendency to gild vice & promote extravagance, to undermine & eradicate vertue which is the only solid foundation of a free government, & to destroy the habits of oeconomy & industry the true sources of the wealth of a nation, they ought not only to be discountenanc'd but forbidden under the severest penalites. my opinion at present is rather in favour of them, as I concieve they may be properly regulated, but it is an object I have very little at heart & I shall chearfully acquiesce in the decisions of the legislature should the subject be by them considered. in any event your observations on the matter will I am sure be both instructive & entertaining.
I can give you very little information more than you will have obtained from the Gazettes, except that the house yesterday fixed the Salaries of themselves & officers, & that there are some appearances which I confess to you are to me alarming.
We have formed a treasury system, which I did not hesitate to declare in the House appeared to me the most perfect plan I had seen for promoting peculation & speculation in the public funds. at the head of it is to be a secretary with power to superintend all the revenue officers, & a person is proposed to fill this office who has heretofore given it as his opinion, that the affairs of America will never be well conducted without an external influence. this secretary has power to propare money bills before they are orginated by the house, in direct violation as I conceive of the constitution & in debating the Subject, when it was objected that he would have an undue influence in the House Mr. M-d-n who is an Intimate of the candidate for this office de[c]lared he had no fear from that influence but was apprehensive of an influence arising from the ignorance indolence & party veiws of the house, which he was as he was afterwards told told was advocating external influence; for us the decisions of the house must arise from some species of influence & he was averse to the influence of its members he was clearly for an influence arising from some other quarter. consistently with this plan Mr. M-d-n is for keeping the Salaries or allowances of the House Congress low & has urged 5 instead of 6 dollars, altho it is well known Virginia allowed more than 6 dollars when the Congress sat the whole year. a few members are influenced by other considerations, namely the opinions of their constituents, to advocate 5 dollrs., but the house have decided it for 6. the consequence of a low establishmt. for Congress will be this a majority of the members will be either nabobs or indigent men, who will unite in plans to oppress & plunder the people. the constitution requires that the members of Congress should have a compensation for their services; the terms used on this occasion are the same as those used for the executive & judiciary: but whilst these are to have high, for Congress low stipends are nevertheless urged & will probably [blotted out] catch the popular ear. my opinion is that the establishment ought not to be on either extreme but such as to make it reputable for any men in America to accept the offices, if elected thereto, & as will indemnify them from losses by leaving their homes. to defeat this wicked system, & at the same time clear the members opposed to it from contemptible & illiberal suspicions of avarice I brot forward a motion & was seconded & supported by some independent members to strike out all provision for members of the House & let them sustain their own expences, by which means they would be able to act independently for the publick interest & avoid the danger of making our house of representatives a mere executive machine to vote away the property of their constitents without any reason or necessity. those however who had advocated 5 dollars & called the yeas & nays thereon, in which we joined them thot it more prudent to take 6 dollars than give such a small testimony of their patriotism as to accede to my motion, which I should have been sincerely happy to have carryed. what renders this matter more extraordinary is that the members who supported 5 dollars supposed Congress after this Session would not sit longer than 4 months in a year which at 6 dollars a day will amount to 720 dollars for each Senator & member of the house, & on the same day the house granted to their door keeper 750 Dollars a year & to their Secretary of the Senate & clerk of the House 1500 dollars each a year & two dollars a day besides for every day of the Session of Congress which if four months would make the salary of each 1740 dollars a year, who ever supposed that a senator or representative would be so debased as to receive as a compensation for his services less than a doorkeeper & not more than 2/5th of the allowance to a Secretary & clerk? these to me are serious considerations & shew that it is in [lined out] contemplation to govern America as Britain is now governed, by corruption. Mrs. Gerry joins me in sincere respects to Mrs. Mrs. Adams & be assured my dear sir I am ever yours
E. Gerry
Please to communicate what respects the Salaries to Judge Sullivan 8th. I had forgot to mention that I was of the committee & was for 5 dollars (as the Sense of our state) for members of the house, wch. was agreed to with a further allowance for Senators; but the making a different establishment for the Senate gave offence to the house & the commee. then fixed 6 dollars for both.
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