The Correspondence of Thomas Jefferson

By Subject

CONSTITUTION / UNITED STATES / IMPLEMENTATION UNDER LAW

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. In disputes between a foreigner and a native, a trial by jury may be improper. But if this exception cannot be agreed to, the remedy will he to model the jury, by giving the mediatas linguae, in civil as well as criminal cases. Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested, may he charged instantly with a well-defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony, in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government, for dam-ages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law, have been worthy of that suspension. They have been either real treason, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual, and the -minds of the nation almost prepared to live under its constant suspension. A declaration, that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed. The declaration, that religious faith shall be unpunished, does not give impunity to criminal acts, dictated by religious error. The saying there shall be no monopolies, lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of fourteen years; but the benefit of even limited monopolies is too doubtful, to be opposed to that of their general suppression. If no check can be found to keep the number of standing troops within safe bounds, while they are tolerated as far as necessary, abandon them altogether, discipline well the militia, and guard the magazines with them. More than magazine guards will be useless, if few, and dangerous, if many. No European nation can ever send against us such a regular army as we need fear, and it is hard, if our militia are not equal to those of Canada or Florida. My idea then, is, that though proper exceptions to these general rules are desirable, and probably practicable, yet if the exceptions cannot be agreed on, the establishment of the rules, in all cases, will do ill in very few. I hope, therefore, a bill of rights will be formed, to guard the people against the federal government, as they are already guarded against their State governments, in most instances. The abandoning the principle of necessary rotation in the Senate, has, I see, been disapproved by many; in the case of the President, by none. I readily, therefore, suppose my opinion wrong, when opposed by the majority, as in the former instance, and the totality, as in the latter. In this, however, I should have done it with more complete satisfaction, had we all judged from the same position.

to James Madison, 31 July 1788