Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 1

Page 191. ‘Quoique la loi dont nous parlons, ne s’observe plus en Angleterre.’ ‘An alien born may purchase lands or other estates, but not for his own use; for the King is thereupon entitled to them.’ ‘Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation. For this is necessary for the advancement of trade.’ ‘Also, an alien may bring an action concerning personal property, and may make a will and dispose of his personal estate.’ When I mention these rights of an alien, I must be understood of alien friends only, or such whose countries are in peace with ours; for alien enemies have no rights, no privileges, unless by the King’s special favor during the time of war.‘Blackstone, B.1. c.10. page 372. ‘An alien friend may have personal actions, but not real; an alien enemy shall have neither real, personal, nor mixed actions. The reason why an alien friend is allowed to maintain a personal action is, because he would otherwise be incapacitated to merchandise, which may be as much to our prejudice as his.’ Cunningham’s Law Diet, title, Aliens. The above is the clear law of England, practised from the earliest ages to this day, and never denied. The passage quoted by M. de Meusnier from Black-stone, c.26. is from his chapter ‘Of title to things personal by occupancy.’ The word ‘personal’ shows that nothing in this chapter relates to lands which are real estate; and therefore, this passage does not contradict the one before quoted from the same author (1.B. c.10.), which says, that the lands of an alien belong to the King. The words, ‘of title by occupancy,’ show, that it does not relate to debts, which being a moral existence only, cannot be the subject of occupancy. Blackstone, in this passage (B.2. c.26.), speaks only of personal goods of an alien, which another may find and seize as prime occupant.

Page 193. ‘Le remboursement presentera des difficult©s des sommes consid©rables,’ &c. There is no difficulty nor doubt on this subject. Every one is sensible how this is to be ultimately settled. Neither the British creditor, nor the State, will be permitted to lose by these payments. The debtor will be credited for what he paid, according to what it was really worth at the time he paid it, and he must pay the balance. Nor does he lose by this; for if a man who owed one thousand dollars to a British merchant, paid eight hundred paper dollars into the treasury, when the depreciation was at eight for one, it is clear he paid but one hundred real dollars, and must now pay nine hundred. It is probable he received those eight hundred dollars for one hundred bushels of wheat, which were never worth more than one hundred silver dollars. He is credited, therefore, the full worth of his wheat. The equivoque is in the use of the word ‘dollar.’

Page 226. ‘Qu’on abolisse les privil¨ges du clerg©.’ This privilege, originally allowed to the clergy, is now extended to every man, and even to women. It is a right of exemption from capital punishment for the first offence in most cases. It is then a pardon by the law. In other cases, the Executive gives the pardon. But when laws are made as mild as they should be, both those pardons are absurd. The principle of Beccaria is sound. Let the legislators be merciful, but the executors of the law inexorable. As the term ‘privil¨ges du clerg©’ may be misunderstood by foreigners, perhaps it will be better to strike it out here and substitute the word ‘pardon.’

Page 239. ‘Les commissaires veulent,’ &c. Manslaughter is the killing a man with design, but in a sudden gust of passion, and where the killer has not had time to cool. The first offence is not punished capitally, but the second is. This is the law of England and of all the American States; and is not a new proposition. Those laws have supposed that a man, whose passions have so much dominion over him, as to lead him to repeated acts of murder, is unsafe to society: that it is better he should be put to death by the law, than others more innocent than himself on the movements of his impetuous passions.

Ibid. ‘Mal-ais© d’indiquer la nuance pr©cise,’ &c. In forming a scale of crimes and punishments, two considerations have principal weight. 1. The atrocity of the crime. 2. The peculiar circumstances of a country, which furnish greater temptations to commit it, or greater facilities for escaping detection, The punishment must be heavier to counterbalance this. Were the first the only consideration, all nations would form the same scale. But as the circumstances of a country have influence on the punishment, and no two countries exist precisely under the same circumstances, no two countries will form the same scale of crimes and punishments. For example; in America the inhabitants let their horses go at large in the uninclosed lands which are so extensive as to maintain them altogether. It is easy, therefore, to steal them and easy to escape. Therefore the laws are obliged to oppose these temptations with a heavier degree of punishment. For this reason the stealing of a horse in America is punished more severely, than stealing the same value in any other form. In Europe where horses are confined so securely, that it is impossible to steal them, that species of theft need not be punished more severely than any other. In some countries of Europe, stealing fruit from trees in punished capitally. The reason is, that it being impossible to lock fruit trees up in coffers, as we do our money, it is impossible to oppose physical bars to this species of theft. Moral ones are therefore opposed by the laws. This to an unreflecting American appears the most enormous of all the abuses of power; because he has been used to see fruits hanging in such quantities, that if not taken by men they would rot: he has been used to consider them therefore as of no value, and as not furnishing materials for the commission of a crime. This must serve as an apology for the arrangement of crimes and punishments in the scale under our consideration. A different one would be formed here; and still different ones in Italy, Turkey, China, &c.

Page 240. ‘Les officiers Americains,’ &c. to page 264, ‘qui le m©ritoient.’ I would propose to new-model this section in the following manner, 1. Give a succinct history of the origin and establishment of the Cincinnati. 2. Examine whether in its present form it threatens any dangers to the State. 3. Propose the most practicable method of preventing them.

Having been in America during the period in which this institution was formed, and being then in a situation which gave me opportunities of seeing it in all its stages, I may venture to give M. de Meusnier materials for the first branch of the preceding distribution of the subject. The second and third he will best execute himself. I should write its history in the following form. When on the close of that war which established the independence of America, its army was about to be disbanded, the officers, who, during the course of it, had gone through the most trying scenes together, who by mutual aids and good offices had become dear to one another, felt with great oppression of mind the approach of that moment which was to separate them, never perhaps to meet again. They were from different States, and from distant parts of the same State. Hazard alone could therefore give them but rare and partial occasions of seeing each other. They were of course to abandon altogether the hope of ever meeting again, or to devise some occasion which might bring them together. And why not come together on purpose at stated times? Would not the trouble of such a journey be greatly overpaid by the pleasure of seeing each other again, by the sweetest of all consolations, the talking over the scenes of difficulty and of endearment they had gone through? This too would enable them to know who of them should succeed in the world, who should be unsuccessful, and to open the purses of all to every laboring brother. This idea was too soothing not to be cherished in conversation. It was improved into that of a regular association, with an organized administration, with periodical meetings, general and particular, fixed contributions for those who should be in distress, and a badge by which not only those who had not had occasion to become personally known should be able to recognise one another, but which should be worn by their descendants, to perpetuate among them the friendships which had bound their ancestors together.

General Washington was, at that moment, oppressed with the operation of disbanding an army which was not paid, and the difficulty of this operation was increased, by some two or three States having expressed sentiments, which did not indicate a sufficient attention to their payment. He was sometimes present, when his officers were fashioning, in their conversations, their newly proposed society. He saw the innocence of its origin, and foresaw no effects less innocent. He was, at that time, writing his valedictory letter to the States, which has been so deservedly applauded by the world. Far from thinking it a moment to multiply the causes of irritation, by thwarting a proposition which had absolutely no other basis but that of benevolence and friendship, he was rather satisfied to find himself aided in his difficulties by this new incident, which occupied, and, at the same time, soothed the minds of the officers. He thought, too, that this institution would be one instrument the more, for strengthening the federal bond, and for promoting federal ideas. The institution was formed. They incorporated into it the officers of the French army and navy, by whose sides they had fought, and with whose aid they had finally prevailed, extending it to such grades, as they were told might be permitted to enter into it. They sent an officer to France, to make the proposition to them, and to procure the badges which they had devised for their order. The moment of disbanding the army having come, before they could have a full meeting to appoint their President, the General was prayed to act in that office till their first general meeting, which was to be held at Philadelphia, in the month of May following.

The laws of the society were published. Men who read them in their closers, unwarmed by those sentiments of friendship which had produced them, inattentive to those pains which an approaching separation had excited in the minds of the instituters, politicians, who see in every thing only the dangers with which it threatens civil society, in fine, the laboring people, who, shielded by equal laws, had never seen any difference between man and man, but had read of terrible oppressions, which people of their description experience in other countries, from those who are distinguished by titles and badges, began to be alarmed at this new institution. A remarkable silence, however, was observed. Their solicitudes were long confined within the circles of private conversation. At length, however, a Mr. Burke, Chief Justice of South Carolina, broke that silence. He wrote against the new institution, foreboding its dangers, very imperfectly indeed, because he had nothing but his imagination to aid him. An American could do no more; for to detail the real evils of aristocracy, they must be seen in Europe. Burke’s fears were thought exaggerations in America; while in Europe, it is known that even Mirabeau has but faintly sketched the curses of hereditary aristocracy, as they are experienced here, and as they would have followed in America, had this institution remained. The epigraph of Burke’s pamphlet, was ‘Blow ye the trumpet in Zion.’ Its effect corresponded with its epigraph. This institution became, first, the subject of general conversation. Next, it was made the subject of deliberation in the legislative Assemblies of some of the States. The Governor of South Carolina censured it, in an address to the Assembly of that State. The Assemblies of Massachusetts, Rhode Island, and Pennsylvania condemned its principles. No circumstance, indeed, brought the consideration of it expressly before Congress; yet it had sunk deep into their minds. An offer having been made to them, on the part of the Polish order of Divine Providence, to receive some of their distinguished citizens into that order, they made that an occasion to declare, that these distinctions were contrary to the principles of their Confederation.

The uneasiness excited by this institution had very early caught the notice of General Washington. Still recollecting all the purity of the motives which gave it birth, he became sensible that it might produce political evils, which the warmth of those motives had masked. Add to this, that it was disapproved by the mass of citizens of the Union. This, alone, was reason strong enough, in a country where the will of the majority is the law, and ought to be the law. He saw that the objects of the institution were too light to be opposed to considerations as serious as these; and that it was become necessary to annihilate it absolutely. On this, therefore, he was decided. The first annual meeting at Philadelphia was now at hand; he went to that, determined to exert all his influence for its suppression. He proposed it to his fellow officers, and urged it with all his powers. It met an opposition which was observed to cloud his face with an anxiety, that the most distressful scenes of the war had scarcely ever produced. It was canvassed for several days, and, at length, it was no more a doubt, what would be its ultimate fate. The order was on the point of receiving its annihilation, by the vote of a great majority of its members. In this moment, their envoy arrived from France, charged with letters from the French officers, accepting with cordiality the proposed badges of union, with solicitations from others to be received into the order, and with notice that their respectable Sovereign had been pleased to recognise it, and to permit his officers to wear its badges. The prospect was now changed. The question assumed a new form. After the offer made by them, and accepted by their friends, in what words could they clothe a proposition to retract it, which would not cover themselves with the reproaches of levity and ingratitude? which would not appear an insult to those whom they loved? Federal principles, popular discontent, were considerations, whose weight was known and felt by themselves. But would foreigners know and feel them equally? Would they so far acknowledge their cogency, as to permit, without any indignation, the eagle and ribbon to be torn from their breasts, by the very hands which had placed them there? The idea revolted the whole society. They found it necessary, then, to preserve so much of their institution as might continue to support this foreign branch, while they should prune off every other, which would give offence to their fellow citizens: thus sacrificing, on each hand, to their friends and to their country.

The society was to retain its existence, its name, its meetings, and its charitable funds: but these last were to be deposited with their respective legislatures. The order was to be no longer hereditary; a reformation, which had been pressed even from this side the Atlantic; it was to be communicated to no new members; the general meetings, instead of annual, were to be triennial only. The eagle and ribbon, indeed, were retained, because they were worn, and they wished them to be worn, by their friends who were in a country where they would not be objects of offence; but themselves never wore them. They laid them up in their bureaus, with the medals of American Independence, with those of the trophies they had taken, and the battles they had won. But through all the United States, no officer is seen to offend the public eye with the display of this badge. These changes have tranquillized the American States. Their citizens feel too much interest in the reputation of their officers, and value too much whatever may serve to recall to the memory of their allies, the moments wherein they formed but one people, not to do justice to the circumstance which prevented a total annihilation of the order. Though they are obliged by a prudent foresight, to keep out every thing from among themselves, which might pretend to divide them into orders, and to degrade one description of men below another, yet they hear with pleasure, that their allies, whom circumstances have already placed under these distinctions, are willing to consider it as one, to have aided them in the establishment of their liberties, and to wear a badge which may recall them to their remembrance; and it would be an extreme affliction to them, if the domestic reformation which has been found necessary, if the censures of individual writers, or if any other circumstance, should discourage the wearing of their badge, or lessen its reputation.

This short but true, history of the order of the Cincinnati, taken from the mouths of persons on the spot, who were privy to its origin and progress, and who know its present state, is the best apology which can be made for an institution, which appeared to be, and was really, so heterogeneous to the governments in which it was erected.

It should be further considered, that, in America, no other distinction between man and man had ever been known, but that of persons in office, exercising powers by authority of the laws, and private individuals. Among these last, the poorest laborer stood on equal ground with the wealthiest millionary, and generally, on a more favored one, whenever their rights seemed to jar. It has been seen that a shoemaker, or other artisan, removed by the voice of his country from his work-bench, into a chair of office, has instantly commanded all the respect and obedience, which the laws ascribe to his office. But of distinctions by birth or badge, they had no more idea than they had of the mode of existence in the moon or planets. They had heard only that there were such, and knew that they must be wrong. A due horror of the evils which flow from these distinctions, could be excited in Europe only, where the dignity of man is lost in arbitrary distinctions, where the human species is classed into several stages of degradation, where the many are crouched under the weight of the few, and where the order established can present to the contemplation of a thinking being, no other picture, than that of God Almighty and his angels, trampling under foot the host of the damned. No wonder, then, that the institution of the Cincinnati should be innocently conceived by one order of American citizens, should raise in the other orders, only a slow, temperate, and rational opposition, and should be viewed in Europe as a detestable parricide.

The second and third branches of this subject, nobody can better execute than M. de Meusnier. Perhaps it may be curious to him to see how they strike an American mind at present. He shall, therefore, have the ideas of one, who was an enemy to the institution from the first moment of its conception, but who was always sensible, that the officers neither foresaw nor intended the injury they were doing to their country.

As to the question, then, whether any evil can proceed from the institution, as it stands at present, I am of opinion there may. 1. From the meetings. These will keep the officers formed into a body; will continue a distinction between the civil and military, which, it would be for the good of the whole to obliterate, as soon as possible; and military assemblies will not only keep alive the jealousies and fears of the civil government, but give ground for these fears and jealousies. For when men meet together, they will make business, if they have none; they will collate their grievances, some real, some imaginary, all highly painted; they will communicate to each other the sparks of discontent; and these may engender a flame, which will consume their particular, as well as the general happiness. 2. The charitable part of the institution is still more likely to do mischief, as it perpetuates the dangers apprehended in the preceding clause. For here is a fund provided, of permanent existence. To whom will it belong? To the descendants of American officers, of a certain description. These descendants, then, will form a body, having a sufficient interest to keep up an attention to their description, to continue meetings, and perhaps, in some moment, when the political eye shall be slumbering, or the firmness of their fellow citizens relaxed, to replace the insignia of the order, and revive all its pretensions. What good can the officers propose, which may weigh against these possible evils? The securing their descendants against want? Why afraid to trust them to the same fertile soil, and the same genial climate, which will secure from want the descendants of their other fellow citizens? Are they afraid they will be reduced to labor the earth for their sustenance? They will be rendered thereby both more honest and happy. An industrious farmer occupies a more dignified place in the scale of beings, whether moral or political, than a lazy lounger, valuing himself on his family, too proud to work, and drawing out a miserable existence, by eating on that surplus of other men’s labor, which is the sacred fund of the helpless poor. A pitiful annuity will only prevent them from exerting that industry and those talents, which would soon lead them to better fortune.

How are these evils to be prevented? 1. At their first general meeting, let them distribute the funds on hand to the existing objects of their destination, and discontinue all further contributions. 2. Let them declare, at the same time, that their meetings, general and particular, shall thenceforth cease. 3. Let them melt up their eagles, and add the mass to the distributable fund, that their descendants may have no temptation to hang them in their button-holes.

These reflections are not proposed as worthy the notice of M. de Meusnier. He will be so good as to treat the subject in his own way, and no body has a better. I will only pray him to avail us of his forcible manner, to evince that there is evil to be apprehended, even from the ashes of this institution, and to exhort the society in America to make their reformation complete; bearing in mind, that we must keep the passions of men on our side, even when we are persuading them to do what they ought to do.

Page 268. ‘Et en effet la population,’ &c. Page 270. ‘Plus de confiance.’

To this, we answer, that no such census of the numbers was ever given out by Congress, nor ever presented to them: and further, that Congress never have, at any time, declared by their vote, the number of inhabitants in their respective States. On the 22nd of June, 1775, they first resolved to emit paper money. The sum resolved on was two millions of dollars. They declared, then, that the twelve confederate colonies (for Georgia had not yet joined them) should be pledged for the redemption of these bills. To ascertain in what proportion each State should be bound, the members from each were desired to say, as nearly as they could, what was the number of the inhabitants of their respective States. They were very much unprepared for such a declaration. They guessed, however, as well as they could. The following are the numbers, as they conjectured them, and the consequent apportionment of the two millions of dollars.

Georgia, having not yet acceded to the measures of the other States, was not quotaed; but her numbers were generally estimated at about thirty thousand, and so would have made the whole, two million four hundred and forty-eight thousand persons, of every condition. But it is to be observed, that though Congress made this census the basis of their apportionment, yet they did not even give it a place on their journals; much less, publish it to the world with their sanction. The way it got abroad was this. As the members declared from their seats the number of inhabitants which they conjectured to be in their State, the secretary of Congress wrote them on a piece of paper, calculated the portion of two millions of dollars, to be paid by each, and entered the sum only in the journals. The members, however, for their own satisfaction, and the information of their States, took copies of this enumeration, and sent them to their States. From thence, they got into the public papers: and when the English news-writers found it answer their purpose to compare this with the enumeration of 1783, as their principle is ‘to lie boldly, that they may not be suspected of lying,’ they made it amount to three millions one hundred and thirty-seven thousand eight hundred and nine, and ascribed its publication to Congress itself.