In September 1789 Thomas Jefferson wrote to James Madison from Paris that "the question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water." In making his own answer, Jefferson famously declared that "the earth belongs in usufruct to the living," that "by the law of nature, one generation is to another as one independant nation to another," and furthermore that "no society can make a perpetual constitution, or even a perpetual law... Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right."
Jefferson's concern was with the principle of popular and legislative sovereignty, for that principle seemed to potentially come down on both sides of the issue. If the people were sovereign they could make any laws and contract any debts they liked, without impediment, including those that had effect after the lifetimes of the lawmakers. If there was no sovereignty above the popular representatives, then there was nothing to restrict them. On the other hand, this freedom ought to apply just as well to future sets of representatives. Otherwise, as Jefferson said, the world "belongs to the dead, and not to the living."
But Jefferson was wrong to say that the question had "never... been started either on this or our side of the water." More than three years earlier, in 1786, Thomas Paine had addressed this very question in his pamphlet, Dissertations on Government, the Affairs of the Bank, and Paper-Money. The issue that raised the question for Paine was the middle one, the affair of the bank. the Pennsylvania legislature had repealed a charter it had granted to the Bank of North America. Did it have the power to do so? Paine argued that it did not.
"The election of new Assemblies folowing each other makes no difference in the nature of the thing. The State is still the same State. - The public is still the same body. These do not annually expire though the time of an Assembly does. These are not new-created every year, nor can they be displaced from their original standing; but are a perpetual permanent body, always in being and stil the same." Hence, contracts entered into by the state, i.e. by the public, could not be broken by later representatives. And the charter was not so much a law as a contract.
Paine prefigured Jefferson's entire train of thought, but from almost the opposite direction. He asked his readers to imagine how it would be "if we adopt the vague inconsistent idea that every new Assembly has a full and complete authority over every Act done by the State in a former Assembly... It will lead us," he wrote, "into a wilderness of endless confusion and unsurmountable difficulties... Every new election would be a new revolution, or it would suppose the public of the former year dead and a new public risen in its place."
Yet that last clause opens new space for Jefferson's attack. The Virginian's position really does rest on the former public being now dead - at least a majority of it - and a new one arisen in its place. In his pamphlet, Paine leaves the issue at this point, and moves on to a history of the bank charter itself. But a few pages later he picks up the thread:
"As we are not to live forever ourselves, and other generations are to follow us, we have neither the power nor the right to govern them, or to say how they shall govern themselves. It is the summit of human vanity, and shews a covetousness of power beyond the grave, to be dictating to the world to come." His prescription? That it "be made an article in the Constitution, that all laws and Acts should cease of themselves in thirty ears, and have no legal force beyond that time." So from the position of an anti-Jeffersonian defender of stability, Paine has become, in the space of five pages in his pamphlet, the precursor of one of Jefferson's most famous - and famously original - thoughts.
Natural law, popular sovereignty, and the power of consent: sequel to come.
