26

JEFFERSON'S ANA COMMENCED.

[CHAP. I.

of the State Governments will tend to an excess of liberty which will correct itself (as in the late instance), while those of the General Government will tend to monarchy, which will fortify itself from day to day, instead of working its own cure, as all experience shows. I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it. Then it is important to strengthen the State Governments; and as this cannot be done by any change in the federal Constitution (for the preservation of that is all we need contend for), it must be done by the States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government. The only barrier in their power is a wise government. A weak one will lose ground in every contest. To obtain a wise and an able goverment, I consider the following changes as important. Render the legislature a desirable station by lessening the number of representatives (say to 100) and lengthening somewhat their term, and proportion them equally among the electors. Adopt also a better mode of appointing senators. Render the Executive a more desirable post to men of abilities by making it more independent of the legislature. To wit, let him be chosen by other electors, for a longer time, and ineligible for ever after. Responsibility is a tremendous engine in a free government. Let him feel the whole weight of it then, by taking away the shelter of his executive council. Experience both ways has already established the superiority of this measure. Render the judiciary respectable by every possible means, to wit, firm tenure in office, competent salaries, and reduction of their numbers. Men of high learning and abilities are few in every country; and by taking in those who are not so, the able part of the body have their hands tied by the unable. This branch of the government will have the weight of the conflict on their hands, because they will be the last appeal of reason. These are my general ideas of amendments; but, preserving the ends, I should be flexible and conciliatory as to the means. You ask whether Mr. Madison and myself could attend on a Convention which should be called. Mr. Madison's engagements as a member of Congress will probably be from October to March or April in every year. Mine are constant while I hold my office, and my attendance would be very unimportant. Were it otherwise, my office should not stand in the way of it."

Before leaving the history of Mr. Jefferson's life, for this year, it is necessary to allude to a practice adopted by him towards the close of it, which has, in its final consequences, drawn upon him more bitter animadversion than any, than all, the other acts of his life put together. It has, in thousands of bosoms, converted what would have been mere partisan prejudice, into personal and vindictive hate. It has, in thousands of even liberal minds, produced wholly distorted estimates of his temper, his candor, his fairness towards opponents-in a word, of his whole character both as a man and a politician. We allude to his making the memoranda which have been published under the head of "Ana." This word, we need not say, is a termination derived from the Latin, and when, in the usual

CHAP. I.]

THEIR NATURE.

27

way, connected with a proper name, is understood to denote anecdotes or sayings of the person bearing that name.'

Mr. Jefferson's Ana consist of records of official, semi-official, and private conversations and proceedings under a great variety of circumstances, in some instances witnessed by himself, in others reported to him by third persons.

It has been claimed that the original making of many of these memoranda was a violation of the established decorums of society or of official etiquette, and that the intention of publishing them converted an error into a crime. The very fact that they were not published until after Mr. Jefferson's death, has been claimed to imply a more settled and ruthless malignity. The public have been eloquently told of hate and bitterness surviving the tomb-of profanations of the sanctuary of the grave, to "shoot" from it "poisoned arrows" at the dead and the living.'

It is conceded, at the outset, that Mr. Jefferson undoubtedly wrote his Ana, contemplating their publication, if events, in his judgment, should render it expedient. They were begun at what he esteemed a most perilous crisis of public affairs, to record facts which would explain the real designs of the two political parties. Perhaps he had formed no settled purpose in regard to the use to be made of them further than as aids to his own memory. It is probable that their other use was left to depend upon circumstances. If the designs he attributed to the Federalists had continued to progress towards a successful termination, and especially if they had continued at the same time concealed from the popular knowledge, we can entertain no doubt that such portions of the Ana would have been contemporaneously made public as respect for official secrecy permitted. The motive which induced the making of such a record, if patriotic and consistently carried out, would certainly demand this.

But the designs of the Federalists were not successful. No minute documentary evidence became necessary to expose and overthrow their projects, whatever they were. Notwithstand

1 For example, Baconiana, Voltariana, Scaligerana, etc. We doubt, however, whether the word was well selected as a title to a considerable class of the memoranda or recollections Mr. Jefferson placed under it.

2 This is Judge Marshall's figure. (Life of Washington, second edition, vol. ii. Appendix, p. 32.) The reader is requested to turn to Judge Marshall's remarks accompanying those particularly cited.

28

EXPECTED PUBLICATION OF ANA.

[CHAP. I ing this, more than twenty years after the writing of most of the Ana, they were "calmly revised" for more accurate, and we may add, more certain preservation. Mr. Jefferson's suffering them, in this situation, to pass into the hands of what may be termed his literary executor, leaving their publication to the judgment of that executor, makes him as responsible for the action of the latter in the premises as if it had been his own individual action. Nay, this is hardly stating the case strongly enough. It is apparent that when Mr. Jefferson made his "calm revisal," he expected the publication of the papers under certain circumstances-unless their object should be anticipated, within a reasonable time, by an equivalent publication from some other source. That object was not anticipated by any other publication. His executor, then, had no alternative. The sole question left is, was Mr. Jefferson justifiable in writing such memoranda, and in impliedly directing their posthumous publication?

There is, assuredly, no kind or shade of dishonor which a chivalric mind shrinks from more instinctively and more loathingly, than from a violation of personal confidence, whether that confidence pertains to public or private concerns. This feeling is not the dictate of overstrained sentiment, but of common honesty; of laws absolutely necessary for the preservation of society, or at least for the preservation of its civilization. Where the official cannot freely confer with his brother official, in or out of official conclave, without having all his inmost thoughts carried to the newspapers-where men cannot meet amidst the gaieties of the soiree, or the genialities of the dinner table, without padlocks on their mouths, and eyes gleaming watchfully for an advantage, society must dissolve, or sink into the barbarism, when it thus sinks into the espionage, of Japan. Among men of any breeding the intimation that a disclosure is "confidential" is not necessary to make it confidential. The time, the place and the circumstances often just as distinctly and imperatively impose that obligation. As a general thing, polite society, and especially where the assembled circle is small, is to be regarded as neutral ground where even antagonists on public. questions can meet with armor off. In the genial glow, when those antagonists have discovered captivating personal qualities in each other or in each other's families-when perhaps music,

CHAP. I.]

CONFIDENCE OF PRIVATE INTERCOURSE.

29

the dance, flashing goblets or eyes more flashing, have cast spells of witchery over the hour-men not made of iron will sometimes talk unguardedly. Sudden confidences are inspired, and find utterances. Who has not waked the next morning, startled with the recollection of his overnight unreserve? Who has not smiled the next moment at his tremor, as he remembered that honor raised walls of adamant between himself and betrayal? It is precisely these sympathetic leanings of man towards his fellow, these instinctive confidences, which gradually sponge away the sharp demarkation lines of party, or class, or sectional hate which teach man his humanity-which raise him from the isolated savage to a clansman-from a clansman to a patriot -from a patriot to a philanthropist.

But are there no exceptions to the obligation to consider as confidential what is seen and heard in social or official intercourse? There obviously are many such exceptions. We certainly are at liberty (in the absence of any specific injunction to the contrary) to disclose what is injurious to the rights or feelings of none. Otherwise, we could scarcely speak of our neighbors, or of the affairs of society. We are at liberty to mention what we have seen or heard, though we regard it as injurious to the person of whom it is related, provided it is so far made common as to lead fairly to the inference that it is not intended or desired to be a confidential deposit with ourselves. For example, what is openly said in a legislative body, or a promiscuous collection of people of any kind, or is constantly and carelessly repeated before friend and foe, or indifferently before new auditors, even in quasi private circles, ceases to carry with it the privilege of a confidential communication in the case of any particular hearer.' If we are not the hearers-if

To place our meaning beyond cavil, we will enter upon some specifications of what we regard as those "quasi private circles" which are privileged from injurious divul gences, unless under the exceptions taken in the text. We place among them unofficial conversations on official subjects with colleagues or others properly concerned in them, even though the parties be enemies—all frank and unguarded conversations assuming a quasi confidential tone between two (or a small number of) gentlemen, without reference to their previous personal relations-anything mentioned of personal or family affairs, and especially anything which pertains to females-anything uttered by a person dispensing hospitality under his own roof, etc., etc. The rule, too, in our judgment, extends to small dinner parties, or other social occasions, where a limited number of persons meet as common friends, or as the common friends of their entertainer. If we chance to find an unfriend in such a place, we should respect the roof if we do not respect him. And finally, a high-toned man will not make himself a personal informer, under any circumstances, unless he feels that duty demands it at his hands. The true rule is, in our judgment, to hold everything private which is said either to us individually, or in a small circle, the repetition of which will bring any kind of injury, ridicule or the like, on the

30

CONFIDENCE OF OFFICIAL INTERCOURSE.

[CHAP. I. the thing has come to us second, third, or fourth handed-still less is the implied obligation of secrecy. The original speaker or divulger, in that case, reposed no trust in us. If anybody has abused his confidence, we are not the responsible party; nor can we even be supposed to know that his confidence is to be abused, unless actually informed of it. There can be no merely implied obligation of secrecy on us in such a case.' It can be made to exist only by express injunction, and the presumption is always against the wrong doer (the first revealer), until it can be made to appear that he attempted to guard his improper disclosure from spreading further by such injunction.

Again, there can be no doubt, in the absence of a particular obligation of secrecy, that we have a right, that we are bound, to reveal anything that the safety and interests of our country, or of society, demand should be made public. Nay, this is not going far enough. If the meditation or commission of anything savoring of a crime, or a great public or private wrong is intrusted to us, an injunction of secrecy could impose no obligation whatever. Our indefeasible moral and legal duties would supersede any artificial one. No person can impose a duty on himself or others, even by express promise, which transcends the laws of God and man.

Finally, many things which were confidential at the time of their occurrence, cease to be so after a proper lapse of time, provided justice to individuals, or merely the truth of history, demands their publicity. This proposition may not, at first view, appear so obvious to all, as do the preceding ones; but a little consideration will show, at least, that society has firmly settled the propriety of the rule. Our intention being to apply this remark chiefly to official proceedings, we shall now examine the subject in no other light. There are many official circles (as for example, the members of an executive cabinet) where it is not customary to impose formal obligations of secrecy in regard to daily transactions, but where such obligations are implied, from the nature of things, because the public interest

speaker, unless a moral or public duty, or absolutely necessary self-defence, requires its divulgence. And the nobler and better rule is, to put foe and friend on the same footing in this particular.

We by no means claim that it is always wise or delicate to consider what is told us not in confidence of third parties a thing which may be unreservedly repeated. We are now discussing what does or does not constitute a breach of confidence."