In response to:
Jefferson Reconstructed from the November 14, 1963 issue
To The Editors:
I write to protest the outrageously inaccurate and deceiving review of my book, Jefferson and Civil Liberties: The Darker Side, by Cecelia Kenyon in the November 14 issue. She falsely says that I “give the impression that Jefferson meant to foist off upon some unsuspecting student a politically bowdlerized edition of Hume…” Yet I show that Jefferson candidly told a student that Hume was full of “errors and heresies” and that the student should read, instead, a book by Baxter who had changed Hume’s text. She claims that Jefferson did not engage in intellectual deception, because he wanted Hume’s name on the title page and I am chastized for not having said so. I said so; he wanted the book called “Hume’s history republicanized.” That fact increases rather than diminishes the deception, for Jefferson did want readers to think that they were reading Hume. Baxter’s politically bowdlerized version appealed to him because readers couldn’t tell where Hume’s text had been altered. The deception had to do with the text itself, not just the title page. The important point is that Jefferson didn’t trust readers to be exposed to the original Hume, nor follow his own maxim that truth will best falsehood in a fair encounter.
Miss Kenyon seeks to dissociate Jefferson from a statute of Virginia abridging freedom of political expression. She says that I associate Jefferson with the statute because he signed it as governor but that I do not take note of the fact that the governor had no veto power. The reader of her review will not know that the statute was a reenactment of one passed four years earlier when Jefferson was the chief draftsman of Virginia’s legislation; that it was a companion piece to a bill on treason, passed simultaneously, that he did write; that while he could not veto the bill when governor, he was free to criticize it and did not; that if he did not wish to criticize it when in office, he was free to do so in his Notes on Virginia, written shortly after leaving the governorship; that he criticized other legislation in the Notes on Virginia, but not this; that he did not do so because when he was governor, he used the statute to imprison persons, against whom there was admittedly no legal evidence, suspected as disaffected individuals who might aid the enemy at some future time.
Miss Kenyon attacks me on the matter of the wartime loyalty oath. She does not doubt that Jefferson supported the oath, but argues, curiously, that it was philosophically justified by the Declaration of Independence. I wouldn’t so malign Jefferson. I do not ignore the fact that the oath was intended to engender support of a revolutionary government, and I do not treat it as if it were similar to current loyalty oaths. Miss Kenyon gives the false impression that it was an innocuous oath, like an oath of allegiance or a naturalization oath. It was, rather, a test oath whose purpose was to identify persons whom Jefferson called traitors “in thought, but not in deed.” Naturalization oaths were not required of citizens even in the eighteenth century and did not punish belief or impose upon nonjurors penalties denying them liberty and property without due process of law as did this oath.
Miss Kenyon ridicules my treatment of Jefferson’s use of the army during the Embargo era, as if there were no validity at that time to Jefferson’s principle that a standing army in time of peace menaced public and personal liberty. He and his followers thought so and argued that point, with proof to spare, right up to the time Jefferson resorted to the extra-legal use of the army. My reviewer contends that if Jefferson used the army against his own people, it must have been all right because Eisenhower and Kennedy did the same. They, however, were enforcing the law of land as judicially determined, while Jefferson’s authority was dubious. But comparisons with the present are beside the point. Jefferson must be judged by the laws and standards of his own time. The only relevant comparisons must be with Washington and Adams who used troops to suppress the Whiskey and Fries Rebellions. Both scrupulously followed the letter of the law; acted, as Jefferson did not, in support of the judiciary to buttress, not bypass, civil authority; and quickly withdrew the troops. Jefferson used the military as an occupation force for months at a time, ignoring, defying, or circumventing the federal courts and the law. He finally got a drastic force act henceforth legalizing his routine, military enforcement of the laws against American citizens.
Miss Kenyon claims that I take for granted both the success of the Revolution and the continued durability of the republican experiment, whereas Jefferson realized that the experiment was a novel one whose outcome was uncertain—something that I allegedly cannot conceive. That is false. I not only…appreciate this view, but elaborate on it in the first and last chapters and even refer to it in the preface. I wish that space permitted me to quote Pages 22-24 in particular as proof that Miss Kenyon has a casual regard for truth. Indeed, I use the point that “Men did not then take for granted that the new nation would survive (p. 23)” somewhat sympathetically as my chief explanation of Jefferson’s “darker side.” As for my alleged use of today’s standards to judge Jefferson, I reiterate in the book that he can be judged only by the standards of his time, and I try my best to judge him that way. My reviewer uses contemporary standards or models and then accuses me of being present-minded. On bills of attainder and outlawry, on constructive treason, on search and seizure, on fair trial and due process, on the scope and meaning of freedom of the press, on prescription of textbooks or proscription of political heresies among students, I state and use the standards of Jefferson’s time.
Leonard W. Levy
Cecelia M Kenyon replies:
It is not within the competence of an author to determine whether he did or did not give a certain impression to a reader. It is accordingly inaccurate of Mr. Levy to describe my statement of the impression he gave of the Hume-Baxter affair as false. My criticism was not that Mr. Levy had failed to indicate that Hume’s name would appear on the title page, but that he failed to indicate whether the title page would give warning that the text was an expurgated one, and that Baxter was responsible for it. Moreover, Mr. Levy failed to report Jefferson’s alternative suggestion that Hume’s entire text be reprinted with contrary statements by other authors added in collateral columns or in notes, a fact relevant to an understanding of Jefferson’s intentions. I would further suggest the relevance of considering early nineteenth century standards and practices relating to literary plagiarism, piracy, and borrowing.
My criticism of the author’s association of Jefferson with the Virginia statute aoridging freedom of expression is similar: relevant facts are omitted. Mr. Levy’s direct evidence is Jefferson’s signature as governor; the other evidence is circumstantial. I note an interesting discrepancy in Mr. Levy’s original account and the one he now gives. In the letter above, he states that this bill was a reenactment of one passed four years earlier; in the book, he states that the Virginia legislature revised and expanded the earlier bill. If the latter statement is the accurate one, it was incumbent upon Mr. Levy to give a close and careful comparison of the two versions. When one is writing a book on civil liberties, and building up a case of guilt by association, one should present all the relevant evidence, and in precise detail. Otherwise, for my part, the verdict must remain one of “not proven.”
I am sorry that Mr. Levy has misunderstood my argument with respect to the loyalty oath. It is not surprising therefore that he finds it “curious.” Far from believing the oath to be “innocuous,” I attempted to give the opposite impression by referring to the “ruthlessness” of social contract doctrine, and describing the oath as an “almost literal fulfillment of the social contract.” Refusal to take the oath meant refusal to enter the new civil society. In conditions of civil conflict, the Tories were thus in a position comparable to that of enemy aliens; in theory, they might have been treated as such.
To describe Jefferson’s use of the army to enforce the Embargo Acts against armed resistance as “domestic war” is, I think, an exaggeration not warranted by the facts and justifiably subject to notice. Mr. Levy is quite right in raising the question of whether Jefferson used proper procedures in employing the army, as I attempted to indicate by restricting my criticism to his attitude toward the use of the army “in and of itself. But again his presentation is one sided. He seems to assume that the only laws the President can or should faithfully execute are those which have been subjected to prior judicial validation. A highly dubious conception of American government.
I am glad to have the opportunity to elaborate on the problem of standards. Mr. Levy makes an attempt to apply those of Jefferson’s time, but in this I believe that he fails. I would qualify my original statement, however, by excluding from my conclusion the treatment of some of the procedural liberties. As for the rest, the trouble lies partly in Mr. Levy’s contradictions, explicit and implicit, and partly in his conception of the nature of standards. Consider this sentence: “All states by 1778 had adopted loyalty or test oaths, weapons of savage coercion’ that failed to distinguish between loyalty itself and the ritual of swearing it” (p. 30). The first part suggests something about the prevailing standards of the time; the phrase in quotes is taken from a book published in 1959. Consider also the statements on pp. x, 23, and 28, that Jefferson “exaggerated” the dangers of the times in which he lived, and that in his lifetime “direct dangers to national security were comparatively rare.” What of the actual wars of 1775-1781 and 1812-1815, the serious threats of war in 1978-1800 and 1817-1819, and the various secessionist maneuvers of 1804-1814? In this crucial matter, Mr. Levy appears to follow modern standards based on hindsight, and colored perhaps by awareness of the infinitely greater dangers of nuclear warfare. Finally, I cannot agree with Mr. Levy’s argument that althought the “standards” which he says were available to guide Jefferson were relatively untested by experience, the “standards themselves had been established” (p. 20). As a political scientist, I find it naive and unrealistic to suggest that responsible statesman should regard as established standards ideals in dispute, but above all, untested by experience. I also believe that it is not always the doctrinally pure politician who contributes most to the realization of his cause. Thus I believe Mr. Levy’s standards for judging Jefferson are predominently those of a modern and doctrinaire libertarianism.
Cecelia M. Kenyon
January 9, 1964