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: [ANONYMOUS]: Rudiments of Law and Government Deduced from the Law of Nature - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 1 
American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 1.
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Rudiments of Law and Government Deduced from the Law of Nature
Between 1776 and 1789 there was a tremendous outpouring of essays on constitutionalism, often with specific designs for state constitutions attached. This is one of the better efforts, both in terms of the breadth of discussion and in terms of the careful thinking and precise expression. The author begins by listing and discussing the basis for the various human rights, and uses this as the context within which to lay out the principles and design for a state constitution. Although he often cites men like Beccaria, Montesquieu, Blackstone, Trenchard and Gordon, Puffendorf, Virgil, and Cicero, the anonymous author writes in the tradition of Aristotle—matching the form of government to the virtues, abilities, and circumstances of the people. The resulting essay is somewhat disorganized, but a good example of how Americans during the founding era always used political theory with a clear-eyed sense of the realities of their situation.
Deduced from the Law of Nature
The following composition is as brief as it could be, for two reasons; because in its present state, it is sufficient to assist the views of such as wish well to their Country; and because the Author would avoid the indelicacy of prescribing more than necessary on a subject which may possibly employ the publick attention.
As to the doctrine and facts, it is founded on incontrovertible truth; and the author will undertake to defend it against all opponents.
Let not its simplicity be an objection to it. Government is not such a mysterious business as the World are apt to suppose. Intricacy is often but a convenient word for embarrassment: For an original error creates occasion for an endless series of expedients, to obviate its ill effects, which still, instead of being overcome, multiply by opposition.*
The common sense given to mankind, is great enough to direct them in all necessary affairs, then they are not bewildered by pernicious tenets and examples. And, on all occasions in life, good hearts and common understandings are preferable to superior abilities when accompanied with ambition.
When this Revolution was yet incompleat, it was a common practice to revert to Grecian, Roman and British customs,** for precedents and models, whereby [iv] to build our political edifice. Is there a necessity for our being always a dependent people? And when our bodies and property are rescued from the controul of others, must our minds shew submission still? Arouse, my friends, and consider yourselves as what you are, of judgement equal to the rest of mankind, with the advantage of their experience. Exert your talents and improve upon the efforts of others. And be it your endeavor to establish a system, which may, by the same act, benefit yourselves and latent posterity, and excite the applauses of admiring nations.
On the present crisis, depends your fate. If you make use of your opportunity, you secure the good of many generations: But, if you neglect it, you may be doomed to drudge in your own fertile fields, and, what would be otherwise a blessing, will be a snare and a misfortune to you.
A good Constitution established; only one evil is left to fear. A degree of inconstancy is too apparent in our public acts, which however justifiable by necessity, shews there is a defect somewhere. A system of Government, once approved of, should be abided by invariably. A relaxation in one point, is a precedent in another, and if we admit of a non-execution in any, we shall annul the whole in time. I would wish to have it inculcated that default of operation of our laws, is the greatest evil that can betide us; because it will prove the generative source of all others.
It is fatally prejudicial to accustom yourselves to consider the interests of society and the rights of individuals as distinct. The body politic, like the human [v] frame, is liable to corrupt and mortify on whatever side assailed by distempers: If the hands or feet are first attacked, the noble parts will in time be invaded. It is incumbent on you to take care that each part remains unhurt, and to remember that, as disorders first appear in the weaker parts of our bodies, so, every assault on the Constitution will probably be made on the most defenseless members.
Let it be your firm determination to guard your Rights; and let no inducement whatever incline you to recede from this resolution.* All motives of policy that can be urged, are deceptious and futile. And if the effect was likely to be good, yet the remedy would be worse than the evil. Three-fourths of the irregularities in the world originate from unequal and inadequate government. Remove the cause, and the effect will cease. At least it is the safest and justest cure practicable by you.
Objections have been made to popular governments, because most of such have been oligarchies; and men have argued from the abuse against the use. Few, if any, have ever had our opportunities. And our situation is unparallelled, if we comprehend our political and local advantages.
O Jupiter, serva, obsecro, haec nobis bona!
Writers on jurisprudence and government, in their first induction of arguments, have pretended to commence their enquiries concerning mankind with a history of the subordination of some single family. Taking their conceptions from animals of prey, which are always proportionately few in number, and are consequently solitary, distributing themselves at a distance, and concealing themselves in holes and corners: They suppose, that prior to national connections, there was a period when persons in general, or at least families, kept themselves distinct and aloof from each other.
The fact is otherwise. Man is a gregarious animal, always united in societies, however unengaged by formal political compacts; his passions such, that society is to his mental, what the air is to his corporal, system, elementary, necessary, natural.
There are but two occasions, whereon the condition of men is different: When the sterility of the country obliges them to keep at due distances from each other; and when general mistrust and defiance have taken place, and safety is obtained only by privacy, stratagem or force. Both of these are, with respect to the majority, involuntary conditions.
Vestiges of natural society are still to be perceived in most villages of civilized nations, and in whole tribes of uncivilized. But what evinces its quondam existence, is that it is a natural law provided for it, the law of the heart and the law of necessity or self-defence.
The first is a monitor in every breast, which at once warns and pains us in case of injustice done by ourselves; which prompts and delights us to do good; which [vii] urges us to condemn or applaud the behaviour of others; and which leaves a consciousness of a similar sense of things in the rest of mankind, and makes our satisfaction or discontent depend on the general estimation of our morals.*
The monitor instructs us to entertain a charitable construction of the intention of others; to bear patiently with the petulance of others; and to forbear long shewing resentment. But, when nothing else will do, the law of self defence, and a common sense of common danger, suggest the necessity, on particular occasions, of the many uniting to restrain the destructive proceedings of a few.
This natural law is not yet effaced, but in despite of capricious customs, oppression and written laws still maintain a considerable sway over the actions of mankind.
Let us enquire how it became so far superseded. Written or oral laws had two different origins: In cases of tyranny, they were intended to restrict; in cases of increased population and equal government, to extend; the benefits of natural law. From these contradictory motives, arose the motley appearance of modern jurisprudence. For in time, the few of evil intentions, by plotting together, proved that unanimity and wickedness, that stuck at nothing, were superior to numbers without design; and one or two overcame the many [viii] by open force, by corruption of others, or by abuse of the confidence* placed in them.
When tyranny was once established, it behoved every other society of men to be on their guard; for there are no bounds to ambition. Unanimity was necessary for their defence, unanimity concentered their authority somewhere.** A power to do much good, too constantly included a power to do equal mischief. And these in their turn fell a sacrifice to their own credulity, and were imposed on by those they confided most in.
(A few perhaps dwelling in least temperate climes, secured by what they deemed their greatest evils, a dreary habitation and unenvied poverty, retained for a long time, with the blessing of health, uncorrupted manners*** and primeaval liberty.)
Riches and power were now to be secured to the new monarchs. And their adherents were to be gratified, to make them persevere in taking part against what was otherwise their own interest. And this was to be done, only by diminishing the property and liberty of the multitude.
[ix] In these circumstances, commences a capital deviation from the law of nature. And in the refinement in the other instance, sometimes the original intention was forgot, and passion and fancy, in the spirit of law-making, dictated instead of reason.
In general, the force of equal natural law was suspended. Those in authority monopolized the dominion, and also the fruits of the earth, the emoluments of others labour; and left to the rest, the toil of culture and the scanty gleanings of the fields, themselves had tilled.
In this situation, only two choices were left; to resist by open force, or to oppose artifice and cunning to the undue methods taken by men in power. The latter was found most likely to succeed, attended with least risk, and almost universally adopted, and a new species of warfare ensued. Iraeque, insidiaeque, et crimina noxia cardi. Virgil. * The Great passed laws to perpetuate in themselves and families, their vast estates, which they pretended was a principle view of uniting in society. And the Little watched their opportunities of unlimited trusts, unguarded statutes, and** civil dissensions, to enrich themselves and dispossess their pretended betters.
In this course of things, statutes upon statutes were enacted to prevent a further retaliation of injuries. What the ingenuity of man could not achieve, was resigned over to severity.*** And death was made [x] the result of a breach of law, both in important and in most mean cases. The reproachable conduct of a few, to be sure, countenanced the authors of such proceedings in some instances. But no discrimination was made; and the man who acted from some sense of right* , and the atrocious infringer of all justice, have been alike brought to shameful punishment.
By such means as these, the calamity became aggravated; and liberty, property, and independence, were in a great measure subverted.
Now and then, to be sure, the contentions of the prince** and magnates made each reduce in part the condition of the other, and thus intentionally serve the interests of the people. And at other times, the supreme authority, to keep up appearances, to facilitate interested designs, to serve all alike in matters wherein their interests were mutual, or from an intrusive impulse of benignity and natural justice, have taken into their consideration, and ordained laws of general welfare.
Some partial conveniences were necessary to palliate great hardships, and appearances of attention to qualify violent injustice. But even salutary acts have been only deliberately consented to, that advantage might recur to the law-makers in the end. And the poor**** subject [xi] (which is a name implying a conquered slave) stript of natural rights, is forced to serve the most ignoble purposes; to bear arms and fight in quarrels not his own; to perpetrate murder, and help to desolate provinces; and thus to uphold in his tyranny, the common foe of mankind.
If the consequences of such oppressive acts were not well known, would not any deem such a condition insupportable? But immemorial custom has taken away the sense*** of injury, and disposed the people, instead of repining at what they have lost, to rejoice that some little matter of priviledge, useless perhaps to their oppressors, still remains to comfort them.
Completely humbled and no longer tenacious of their positive natural rights, they now solace themselves with ideas of comparative advantages over their neighbours; and are taught by a strange perversion of reason to deduce proofs of their own liberty from the higher approaches to slavery in others, and actually to glory in their present condition.
This was all that was wanting to complete the catastrophe of human dignity.
Sophistry comes necessarily in aid of fallacy; and bold assertions in the form of comparisons, and flights [xii] of fancy, are received as proofs of the fitness and even superiority of their monstrous constitution. At one time, a certain triform condition is like a pyramid* composed of base, summit and mediate space, each necessary for the support or completion of the rest.** At another, the three estates are formed to clash and jar with each other, and then good institutions are only to be fabricated by an opposition and collision of interests.
It is the property of prejudice to maintain all causes espoused, right or wrong; and when people are in this mood, if a constitution defends in some, unnecessary riches and power, it is notwithstanding a good one; if all tenures are best foedal, and may be with-holden from the innocent heir for a felony committed by the present possessor, it is a good one; if a poor sailor or even a labourer is liable to be taken away from his family and home without his consent, it is a good one; if its laws are replete with cruelty, inconsistency, injustice, ambiguity and fiction, it is a good one; if bribery is the avowed rule of practice, and the majority of senators are placemen, it is a good one; and lastly, if the order of things is inverted* , and the people are made to serve the king, and not the king the people, it is a good one still.
I am not going to detect the inconsistencies of all ancient and modern political fabrics, nor to criticize more than necessary on the British. I even acknowledge [xiii] some comparative advantages of the latter; but from our former prejudices in favour of it, and from the idea, almost become universal, of its perfection; it is requisite to shew that the best form of government extant, is a tyranny, a jumble of contradictions, and an incongruity with the law of nature.
To reconcile right and wrong with each other, and assimilate opposites into the same system, may require greater exertions of skill and logical talents than only to delineate the simple course which nature points out to us. And I grant that the compound of English jurisprudence is ingenious enough.
The ingenuity however, conveys no idea of goodness. And, abstracted from the intentions of the actors, a separation of the offices of king and judge, does not make the power, still retained by the king, justifiable; the privilege of decision by jury, does not vindicate the dilatoriness and changeableness of other law proceedings; nor is a habeas corpus act, a satisfaction for unequal property and the endless infringements of liberty by the combination of the Great and by undue influence.
Relief from oppression, no doubt, affords a rational ground for rejoicing. But such pleasures are the feelings of slaves, not of freemen. And it has been the peculiar felicity of America to have been always in a great measure out of reach, or out of the power of arbitrary tyrants; and it is now to be so altogether.
It is therefore our business, without confining ourselves to imitate such wretched exemplars, to recur immediately to that great Law of Nature; concerning which, those who follow it least, acknowledge, “That no human laws are of any validity if contrary to it, and that such of them as are valid, derive all their force and authority mediately or immediately from this original.”
The Rights of individuals from society by Natural Law, are, Safety, Liberty, Kindness, and Due Portions of Common Property, of Political Consequence, and of Social Emoluments.
As the senses are the foundation of our knowledge of matters of fact, so are the innate feelings, which suggest these rights, the basis of duty and justice: And from these principles all enquiries of natural law must commence.
The Intent of special Society, is, by justice, sympathy, wisdom and joint means of self-defence, to render the enjoyment of those rights permanent and certain.
Both humanity and policy dictate that the members of society should be protected in* life, limb, organ and feature.
These no resentment should affect, no policy invade. Nothing but indispensable necessity in self-defence, can warrant the effusion of another’s blood. There is a choice of expedients to shun this horrid custom in criminal cases, as will be shewn hereafter.
To deduce the propriety of capital punishments from the power of individuals, is to argue from the abuse for the right.
The reputation of a man, ought also to be inviolate: In many cases, his safety is dependant on it; his peace of mind and happiness always.
Liberty of Thought has been said to be uncontrolable, but it is not so altogether. Fear and affection will insensibly sway it: In matters of political concern, such conduct requires censure.*
Liberty of Speech and of the Press should be free, except where manifest injury** is done by it; and then censure should pass on it. When reproach is merited, it is natural punishment, and must be borne with.
Liberty of Action ought not to be abridged by political compacts. In some cases it is directed not restrained. Freedom is not to be construed a liberty to do evil or detriment, even to the persons themselves. In free governments and equal representations, the levy of taxes, or other State transactions do not imply compulsion; for how can that be compulsion, which reason has suggested, his delegates advised, and his self permitted.
The fundamentals of a Constitution, inferred, and once determined on, from natural law and local circumstances, should like the laws of the Medes and Persians, be unalterable and irrevocable* : The people in this case have the power, but ought not to have the will, to revoke; therefore have not the liberty.
Liberty of Loco-motion should likewise be unrestrained, except only in cases of atrocious misdemeanours. Let measures of government be as equal and mild as they can, there is no reason for compelling any to remain involuntary members of it.
Benevolence is due from one to another, not as a return of advantage received, but as an essential mark of humanity, demanded of our conscience by our Creator. And the omission to indifferent persons, is reproachable; to relations, allies and friends, infamous.
Kindness, necessity, unalienable right, entitle every one to the means of subsistence, in whosesoever hands those means may be; but to prevent irregularity and disquietude, when any are in distress and without natural friends, it is the part of Government to undertake the care of them.
Hospitality also is due unto strangers; that is, charity, decent behaviour, and protection from cruelty and addition of evil, while with us. To think of including an equal care of all mankind, would be to disclaim a national union; which implies a necessary, distinct, interest, benefited often, warrantably, by the imprudencies of others.
Natural property consists of land, spontaneous produce, game, and the elements.
This property is common, in the sense of a patrimony; of which, until a division, the inhabitants are co-heirs. The title to all, is, the equal gift of the Creator; and the intention of the gift, is deducible from the indicative utility and equal want.
Where there are no laws to make distributions, occupancy in due degree becomes valid, as the necessary personal act of each individual: But it is a requisite condition, that it be confined within the limits of necessity or equality; for, whatever may be said to the contrary, the consent implied or exprest of others is considered, or the possession militates against the very essence of natural law.
Artificial property acquired by honest industry; such as the product of the earth by tillage, or as manufacturers, ought to be particular.
This is natural law; but local circumstances and the condition of settlements by migration from other countries, occasion some necessary variation. Natural law imparts an equality of property; which however is liable to alteration from the difference of acquisition by different talents and industry. Settlements by migration are not practicable without the assistance of the rich, who will require encouragement proportioned to their own possessions.
From some fortunate circumstances, however, America has not yet departed far from the rule of right, which ought as much as possible to be observed, not only as the law of God pointed out to us, but as a just law, and as productive of happiness and safety.
* Its efficiency with respect to the last consideration may be evinced from the following observations:
Men in moderate circumstances, are most virtuous.
An equality of estate, will give an equality of power; and equality of power is a natural commonwealth.
The first seeds of anarchy are produced from hence, that some are ungovernably rich, and many more are miserably poor; that is, some are masters of all means of oppression and others want all the means of self-defence. Ibid.
The eagerness to obtain large fortunes, arises frequently from emulation. Equality may be borne with; but superiority from incidental circumstances, not annexed to merit, is galling and insufferable.
* Equality, or submission only to magistrates, age and superior knowledge and wisdom, should be the prevailing disposition, and compose the spirit that pervades the whole state system. When, with the extent of property permitted, every just honour is attainable; the mind must be warped indeed, that is still dissatisfied. Let such be allowed to retire to countries, where liberty is less cherished. It is a happiness to be rid of them. With a less ambitious bias, the man, who was already as rich as he could be, would turn his endeavours towards distinguishing himself by works of elegance and taste, would foster the arts of painting and sculpture, encourage the faithful historian to relate how one State only of the whole distracted world, formed itself on a generous benevolent footing; or perhaps cause stately domes to arise for his own gratification, or cut useful canals from one river to another for the benefit of his country.
But how is this balance to be moderately maintained? By ceasing to be unjust.
Instead of the natural right as before stated; designing men have pretended, that what was common property, was not equally the property of each person, but the property of the government or king; to dispose of ad libitum, and in some cases to resume; And the same men who have the effrontery to assert that their king never dies, because the kingship or office endures have insisted that there is no natural right which continues the possession of parents in the children.**
It is the business of those men, qui iras et verba locant, to maintain fictions and deny facts. In the eye of reason, children are an enlargement or continuation of those they sprung from; they participate in their rights, and represent them.
Where else in case of demise of their parents, are they to obtain a modicum of property? A conviction of this inherent right formerly occasioned the laws of England to restrict parents from bequeathing away more than a certain part of their possessions. So the laws of Rome allowed sisters and brothers to succeed equally to land; and the reason of ordaining title by primogeniture, or to men in preference to women, arose solely from the intent of feudal tenures: When the reason of which ceased, the law and usage should.**
A just and equal succession will diffuse property in portions not greatly dissimilar. But should this measure not have all the effect desired, real estates might be made unalienable, without particular permission. And if this won’t do, further increase of property must be positively restricted.
There were two reasons why in England real estates were made alienable. When the Norman Barons possessed the dominion and the land was tenanted by vassals, conveyance by sale was permitted, that, by extravagance, by cruzades, or other ways, the land holders might be induced to transfer to others their property, (which would thereby become more generally possest) and to accede to a reduction of their own exorbitant power. The other reason was, to promote the security and encouragement of trade.
If, when property was monopolized by a few, transfers were permitted to diffuse the civil right to it; does it not follow, when it is as moderately divided as we can expect it ever will be, that they should be prohibited to prevent a contrary alteration?
The reason with respect to trade, ought not to have the least weight here. In countries less favored by Heaven, they are forced to recur to a thousand shifts to supply, by industry and ingenuity, the deficiencies of a bleak or barren climate. But it is far otherwise with us; lands annually renewed and a vertical sun, furnish us with staple commodities that cannot fail to procure immediately or by purchase every convenience or even luxury of life without such adventitious assistance; as will be shewn more largely hereafter.
Right of property consists in the free use and possession of it without control or diminution, but does not necessarily imply a power of cession or divestment to the detriment of heirs, who certainly ought in some measure to be accounted joint owners.
From what has been already said, this right appears so indefeasable, that it ought not to be subject to forfeiture in case of crimes, or be made to escheat on failure of regular succession, but rather left to delapse to collaterals, allies or even friends.
Nothing herein is meant to restrain the disposal of personal estate.
OF POLITICAL CONSEQUENCE
* Every man feels himself entitled to an equal degree of consideration with others, allowing for the difference of abilities; and the partial custom of an accorded choice in election of representatives, confirms the claim.
This right however has been greatly restricted. In some countries, freeholders are not allowed even the privilege of chusing whom they will be governed by. In others, they are obliged to vote openly and not by ballot in the election of representatives. And in the best, unless men of large estate, they are confined to a choice of others, and are not eligible theirselves.
The argument urged in behalf of such practice, is that men who are indigent and low in circumstances, are more liable to yield to temptations and bribes, and therefore more likely to betray the public trust. But experience proves, that none are more insatiable than the rich; perhaps the truth is, that those of moderate estates are least to be corrupted. But there are men of virtue in all stations of life: And shall we, on account of the unequal distributions of fortune, exclude such from exerting themselves to their own credit and the service of others?
Some standard ought to be affixed, by which the right of a citizen may be ascertained, such as a modicum of possessions, long sojournment with means of maintenance, or an act of naturalization; nor should we admit every adventurer to assume consequence among us: But, this matter settled, the people must be left to elect, without the interference of others, the parish and county officers and magistrates.
To annex privileges and immunities to men of certain fortunes, is to allow of different ranks and different interests among us; which is the subversion of a free system. Liberty depends on a unity of interest. And if we prize, as we ought, the rare, inestimable blessing; we must sacrifice former prejudices and habits to its security. Ex virtute nobilitas coepit. And as with virtue, nobility begins, so it ought to end. As there can be no inheritance of good deeds, there ought to be none of honors. Whatever politics set aside the observance of this maxim, are destructive of liberty; because none can be made great in the sense of powerful without a proportionate debasement of the rest.
* According to the encouragement given, will be our efforts. And who that thinks aright would not rather wish to see his son virtuous than great? But when glory and renown are to be the sure concomitants of virtue, every desire becomes gratified. Those indeed who would govern only by fear, are but shallow politicians. A perfect government should not only punish for crimes, but reward for a contrary conduct. Let humanity, public spirit and knowledge, be distinguished by particular honors.
*** The ill effect of superfluous riches has been already taken notice of: To maintain a mediocrity and equipoise, not only some must be prevented from soaring too high, but others must be encouraged to elevate their ideas, and not be permitted to consider themselves as a grovelling, distinct species, uninterested in the general welfare.
For the latter defect, education** is the natural remedy. With this view schools should be established in every parish or petty district, to initiate children in learning. And, in some healthy situation, a college should be built and liberally endowed; where their further studies may be prosecuted; where every science useful and amusing may be taught, but particularly ethicks or the duty of man towards God, himself, his connections and country. This study will necessarily comprehend a knowledge of himself and of his relationship to other things: And this is so essential a part of learning that the perfection of it ought to be the ultimate view with which we acquire other branches. To content ourselves with making science barely ornamental, is to pursue a shadow and neglect the substance. The least fault indeed resulting from it, is pedantry or foppery: for without some direction, learning often serves only to make men eminently mischievous and hurtful.
By means of such seminaries of learning, many will emerge from obscurity and become shining members of the community, who would otherwise, from confinements to occupations not suited to their capacities, be lost to their country and themselves; all who please will be made acquainted with the bright ornaments of other countries and times, and some be induced to follow their example; some again will incline to contemplate the overbearing tyranny of other constitutions, and will discern with heart-felt satisfaction the equal, parental, benign, influence of their own.
Many are the advantages both of honor and profit that will accrue from these institutions. Our country will be enriched; our manners will be polished; our minds will be illumined; and the liberty of the press will be valued and preserved: Whilst other nations, defected by their declining affairs, discouraged by oppression, and blinded by superstition, embrace the contrary tenets; wrangle about unmeaning words; degenerate by degrees into breakers of all faith and order; and finish their career in anarchy, barbarity and ignorance.
OF SOCIAL EMOLUMENTS
It is absolutely requisite that all ranks of men should enjoy equally, if duly qualified, the posts of honour and profit (which are on the same footing as common property). To confine these to a particular set, or to those* who are too rich and great already, is to infringe the natural terms of alliance. It is therefore necessary to make the appointments of short duration; to select officers from as many different parts of the State as we can; and to prevent a re-election of any to the same office.
However just this recommendation is, many difficulties will oppose its acceptation: Party, interest, friendship, combat against it. And perhaps nothing but rigid, precise laws will render it efficacious.
Such ought to be the equal participaton between acknowledged citizens. But, whilst the world continues as it is, in a state of hostility or indifference between one nation and another; none other has a right to expect, a kindness they do not shew; and, whatever hospitality may be extended to an individual, no foreigner can be entitled to the privileges of a proper member, but must content himself with such terms as he acceded to on his arrival, until the lenity or prudence of the State relieve his condition.
In the state of defiance before alluded to, the nature of man is, to consider not only what one nation has done to another, but what it probably would do if it had more in its power; and to pursue a conduct accordingly. In cases of this kind, injuries which proceed from reciprocal ill intentions, cease to be acts of injustice: and we only take that advantage of others, which, when opportunity served would be taken of us. I acknowledge that there is no kindness in this, but it is common conduct, and situated as the world is, it is necessary and just. Not to benefit by these opportunities, would be inconsistent. To rescue men of another color from the condition of slaves, by purchasing them from less considerate owners. To put them on the footing of servants, by constraining their masters under peril of fines and disgrace, to cloathe and feed them well, to be moderate in exaction of labour, to allow them one day in seven for rest, and to be temperate in punishment. This is not the occupation of rigid task masters, but of men who accommodate themselves to the world, who avail themselves of advantages that arise a thousand ways from the superiority of their own, and inferiority of other constitutions, and who protect, and alleviate the condition of all within their power, as far as compatible with their own internal union and engagement.
The danger of contaminating ourselves by a gradual mixture of manumised or fugitive blacks, is an evil little noticed because yet in embrio, but of a nature that requires our most serious attention. This disorder, I fear, creeps on us and gains ground imperceptibly.
But what would be the case, if a general emancipation should take place.
Let every spark of honest pride concur to save us from the infamy of such a mongrel coalition! Let honour forbid its being said, that we were thus degraded willingly and intentionally! And let prudence avert that so foul a stain should be affixed on us from want of vigilance and forethought!
If the inconsiderate debaucheries of youth; if the indelicacy of the poor and negligent, have made some approaches towards this jumble of colors; it is the business of the steady and discreet, to prevent the contagious mischief from spreading, by assigning impassable bounds, which may still keep the different species apart, and preserve their ancient conditions and distinctions invariably.
If this is now a difficult task, what would it be on an addition of numbers? I would advise all seriously to consider the various consequences of an unlimited importation.
The preservation and maintenance of these rights, is the final cause of association; and all constitutions are just, in degree as they conform to these views; and weak and tyrannical as they deviate from them.
The *regulations of government must owe their form to the efficience ofthese purposes. And the Distribution of Authority, the Body of Laws, the Administration of Justice and the General Policy of the Republic, must breathe no other intention.
OF THE DISTRIBUTION OF AUTHORITY
The community are naturally judges of our conduct, to approve or condemn, and, in case of depredation, insult or assault, to restrain in self-defence. This, every man feels for and of himself. There is however a certain stage of life, necessary to acquire experience of things and even a knowledge of language under which period, persons must be deemed incompetent judges. In regard to difference of abilities; every man is capable of feeling what is right, and the dullest ought not to be excluded from giving his vote and opinion. For laws and regulations seeming inconsistent, and not of self-evident utility to the meanest capacity; cannot be consonant to nature.
The community are also sole judges in matters of common concern, and, however represented, ought to remain the supreme authority and ultimate judicature.
No sufficient reason can be assigned, why the representatives of a country should not be restricted in their power. It ought to be a maxim that their authority* extends not to doing wrong. In momentous cases, highly essential to the whole, the whole** should be consulted maturely; and they alone should fix the decree. In them that plenary power rests and abides which all agree should rest somewhere; and which, sycophants and designing men would deceive us into an opinion, should be vested in kings or parliaments exclusively of the people.
For, the welfare of the community, once confided to the uncontrolled discretion of one person or of a* set of men encourages a propensity to improper indulgence in those to whom the opportunity is given. (There is a vis inertiae in human nature, which inclines men, already distinguished by, and from, the public, to make others subservient to their purposes, rather than to labor to obtain the same things by their own efforts). It causes a separation of interests; and sets the wills of most in opposition to each other.
The principle of self-preservation was implanted in mankind with peculiar inducements of both a positive and negative kind for each and all to take upon them the care of themselves: Nor can this case be imparted with propriety to others, except by way of mediation in disputed points: A situation which can not happen to the rights of mankind, as they are clear to every capacity, and ought to be unalienable even by the parties themselves. This is a natural trust and cannot be resigned without a base relinquishment of the charge committed to them.
The office of denouncing their minds, may be delegated to a chosen few, that of determining a right never should.
** Whatever difficulty there may be in convening and taking the sense of all the members of a society at once; there is none in assembling parishes separately. In which way, matters of constitutional concern, suggested by men of prudence and discernment, should be duly deliberated on and fairly submitted to vote, and a final issue may be taken in General Assembly on a certain majority of vouched and recorded parochial decisions.
The assembly or Representatives should either consist of one house of men of mature years (which perhaps is the best) or of two of young, and old; Juniors and Senate; (The division of old and young being natural and just, the world consisting of such, and experience approving the distinction) who are to be the guardians of the people* , to receive the reports of the executive officers; to communicate to their constituents, to be restricted to a punctual observance of the will of their parishioners and of the constitution; to perform the routine of business within the limits prescribed by the people; and to nominate all officers of State; themselves not eligible.** Their authority should hereto be positively confined. Like the faculties of the mind, they must be content with perception and circumscribed volition; and must altogether leave the active part to executive members.
Which executive branch of government is best formed of a small body with one superior. The executive only to perform, (without a will of their own), what the constitution and representation enacts.*** The executive to nominate pro tempore to offices in case of demise during a recess of parliament.
Whenever both powers are united in one, the temptation to ambition is too great for human frailty; and the danger to liberty imminent. And such is the facility of mankind to forget themselves; that it is incumbent to limit the duration of these confined honors, as well as just to afford a chance of them to all: Besides the consideration, that not to limit, would be not to entrust, but to aliene.
Where natural law is not sufficiently explicit; reason must supply its place, by adopting regulations which tend best to preserve and pursue those points where it is. If it does not intimate to us exactly such appointments, as are here advised; it at least informs us of the propriety of employing men of talents who are upright, and in cases either of trouble or profit, of a rotatory change of men. Where a convention of all would be inconvenient, it certainly suggests a deputation. But with respect to determination of numbers, as a point without consequence, it leaves the different parties to suit themselves.
It is said, to leave the decision of causes to discretion, would be to relinquish the power of judicature to fancy, avarice, resentment, and ambition; that a new practice would be established on every fresh occasion, and that we should for ever fluctuate in uncertainty and litigation.
But this perhaps should be understood with allowance. When there is a contrariety between law and reason; the judges must be embarrassed. When there is not justice on either side, there can be no rule of decision, but practice. When judges are not permitted to appeal to their own sober feelings, but are liable to be harrassed and distracted by the fraudulent insinuations of others, their judgments cannot be consistent and methodical.
On the other hand, no number of statutes will comprehend every particular case; so indefinite is the variety from changes of circumstances: And one insurmountable difficulty is formed from the attempt; for every new law, where such is the practice, acts as rubbish, under which we bury the former. To endeavour to compose a compleat system, is in reality the amusement of speculative casuists; not the employment of the guardians of the people.* Law, to be just, should be simple, clear, and intelligible to the meanest capacity, in the same degree in which it operates.
** And why else was a sense of right and wrong imparted to mankind, if not to enable them to decide concerning it in some measure? For the mind is as competent to a moral decision, ex aequo et bono, as to a knowledge of facts, secundum quinque femus. Besides this is certainly natural law, and ought not to be departed from.
What then is to be done? Is no middle course pervious, which may enable us to shun the principal difficulties of either extreme? Let principles of law be defined, and axioms be described. If we cannot comprize the species; let us effectuate ut rerum genera complecigrentur. When perhaps we shall do more, than if we attempted more.
And thus much is necessary. Salus populi suprema lex esto (let the good of the community be the chief rule of conduct) is not always a sufficient direction to magistrates, and some laws are necessary to shew how far their authority does not extend. Local circumstances and proportions too, require adjustments and regulations, which ought to be constant and uniform. But at all events, the code* of laws should not be too large for the attainment of moderate capacities: The knowledge of it should not need the study of a whole life, but be attainable with ease at leisure.
Law from precedent should be altogether exploded. Either there is no exercise of justice in the case, or the law is deficient. And it is not a single evil that results fostering law courts to become legislative. What people in their senses would make the judges, who are fallible men, depositaries of the law; when the easy, reasonable method of printing, at once secures its perpetuity, and divulges it to those who ought in justice to be made acquainted with it.
OF THE ADMINISTRATION OF JUSTICE
Whatever choice there may be of measures conducive to these purposes; the best only should be chosen and abided by. In this particular, things and methods differ. In the former may be a difference of substance and sameness of quality. In the latter; the difference is of good, bad, and indifferent: And perfect resemblance becomes coincidence.
It cannot be therefore good, to have one method of trial* by king or governor, another by a judge, and a third by jury.
Taking it for granted that particular defects in one mode are avoided in another; this does not afford a choice of remedies, but of inconveniences, or at best it is creating difficulties to have the trouble of removing them.
Let then our justiciary proceedings be uniform and unical.
* Trial by jury is certainly best, because natural, equitable, expeditius, and least liable to influence. The jury should be literally peers of the vicinage. A grand jury should find or reject the bills of indictment. Parties should plead their own cause. The office of the judge should be to enforce order in court, to expound the law, to sum up the evidence. The decision should be according to law, evidence and justice. And the verdict of the jury should be determined by a majority: For it is preposterous to expect unanimity at all times.
The award should be according to the enormity, to utility from sufferance, and to degree of proof: which degree must be ascertained by the proportionate majority of the convicting jury.
Utility from the sufferance of criminals is either negative or positive. Negative, from an incapacitation to do further harm; as in case of exile, which is a species of punishment perhaps best adapted to offenders not satisfactorily convicted. Positive; as in cases of award of damages to individuals, and, in atrocious malpractices, servitude and even hard labor in public service for a term or for life.
From these methods, advantage will accrue to the community, but none from death** . And as to banishment of criminals, what right have we to turn loose upon others nations, such ungovernable spirits as no consideration could restrain? And might not others in their turn cast forth their outlaws upon us? The same objection does not present itself on the occasion recommended. To remove a person of dubious character, is right with respect to ourselves, from the consideration that security is better than danger; and where the character of the person is suspected, is not absolutely forfeited, he is laid under a necessity of behaving with more prudence in another society, lest he should again be subjected to the inconvenience of a removal or to a less mild punishment.
It is an erroneous maxim that cases made difficult by obscure laws, should be left to the decision of a Judge (arbitrio boni vire): An unintelligible law is on the footing of a blank, and ought not to have any weight.
** As there is no propriety in punishing the assumption of private vindication and vengeance, where the law has not provided a remedy; it is incumbent to institute courts of enquiry as in military matters, of responsible members of society, wherein acquital or disapprobation may be given, and to make their judgement a foundation for bills of indictment against accusants; and this not only in the case of moral defects but of constitutional; the latter of which, when irremediable, are painful enough without the addition of sarcasm.
In a system aiming at perfection, it seems requisite to stigmatize flagrant ingratitude; and to dignify those, who have distinguished themselves by useful exertions of sympathy.
The discouragement shewn to actions of slander not meerly litigious, appears of evil tendency. People of weak capacities will be induced to estimate less a good character, in proportion as their complaints of detraction are discountenanced.
All cases should be bailable except for disfranchising offences. Imprisonment should not be permitted for debt, but seizure of personals only allowed: Whoever gives credit, consents to run the risk of another’s fortune.*
Of the General Policy of the Republic
This head comprizes a variety of subjects; Means of Maintenance, Communication, Opulence, Population, Habitation, Peace and War, National Character, Financiering, and Modes of Defence.
These subjects duly digested; a plan of action may be instituted; according to which all our councils must be directed and our intentions must conform: For without such deliberate operative preparation; we shall be in the condition of individuals, governed by contingency and caprice, doing to repent, and involving our selves and posterity in needless difficulties.
OF MEANS OF MAINTENANCE
These are in every country, real or artificial. Artificial means with prudence and industry, are better than real without: But artificial means are insecure; being at best but comparatively good, and succeeding from the inattention and omission of others. Artificial means indeed are but a substitute for natural: For who would think of seeking by trade or commerce with others, advantages which he holds already in possession; when the principles of commerce are to improve on favourable events, and to pursue such methods as promise greatest profit. Real advantages too do not preclude artificial, but render them unnecessary. And we ought to remember that natural advantages do not become means of maintenance unless made use of. An insight into what there are, is absolutely necessary; lest our inhabitants, admiring the ingenious performances of nations differently circumstanced, should emulate them, and neglect their own more fortunate opportunities.
What then are our natural advantages? Swamps, of inexhaustible fertility, full of cypresses and cedars, fit to produce rice, indigo, tobacco, madder, hemp, flax and corn; vast tracts of land covered with useful pines; and the barrenest sand-hills covered with durable oaks; rivers intersecting the whole country; and the earth itself replete in most places with clay for brick-making and in many with iron serviceable on almost every occasion in life.
Does not then the very face of things recommend agriculture as the means of supporting ourselves and raising of staples for commerce, and ship-building as the means of disposing of them at an easy cost?
Those can scarce conceive the superiority of our own lands, who have not visited other countries nor seen the endless labor and expence necessary to excite fertility there. Here climate and soil cooperate to the sure acquest of gain and to the exclusion almost of a possibility of that distressful evil, a famine.
Abundance of grain and fodder, and the tender herbage vegetating with such celerity in cultivated lands, are beneficial to stock, and are the means of amply supplying our tables, and of furnishing us with leather, with wool, and with other ingredients sufficient to answer our necessary wants.
Do not these circumstances indicate to us that we ought to confine our views to the product of our lands, and to the manufacture for home consumption of articles, of which the materials are provided to our hands. In which case, we shall only need from others, ornamental conveniences of such things as in time of interupted commerce we can dispense with use of.
It ought early to be considered, what stores we are possessed of, and whether we have more of some articles (timber in particular) than may be requisite for our own uses; that a prohibition to vend or destroy, may take place before a scarcity.
Communication with every part of the country, by making and regulating of roads, and by forming canals between one river and another to encrease our inland navigation, is a task at once practicable with ease and necessary for our convenience as well as profit.
We have neither rocks to perforate or eject, nor many hills to level or surmount, but in general a soft and not unfirm sandy soil; that leaves no trouble to make a high way but that of removing the trees therefrom or of sinking small drains to prevent water from stagnating on it; and respecting canals, the natural curves in our rivers, evidently point out to us the places where we may benefit by our labor: The ease of water carriage, and the expence of land transportation, will not bear a moment’s comparision. The Creator of the world has formed large reservoirs of water on higher land, and has given us hands and ingenuity to avail ourselves of it, if we are willing. And this is all the aid he in general affords or we have right to expect. The quality of fertility in the earth, is not in a greater degree beneficial to us, until industry adds application to fitness and converts it into use.
True opulence consists in the possession of, or means of obtaining, in abundance the real necessaries of life and also such articles of taste as serve to render our existence not only satisfactory but happy. When our possessions once exceed the limits of amusement and become objects of fastidious emulation, glare, and trouble; they cease to be desirable, and change* their power of gratification for qualities pestiferous and baleful. When therefore, if ever, such an inundation of riches flows in upon us, it is incumbent by taxes on importation or exportation of the lucrative articles to divert part of the current into the public funds for the necessary purpose of fortifications or ship building or the assumed one of elegant buildings for public use. But half the extravagance in living is owing to the vile invention of credit, the expedient of men and countries who, not having real possessions, wished to assume the name and appearance of having; or at best to profit by the use of what was not their own. When real expences are incurred on ideal profits and ideal funds; irregular indulgences, false appearances, and discouragements of industry, are the consequences. Abolish this pernicious custom; and at least half the evil of excess is averted.
The same glowing sun which quickens the vegetable creation so instantly into life, also induces us to relax from our labor; and performing by its rays the office of invigorating the plant, saves us the degree of toil necessary in other climes, and invites us to indulge in the enjoyment of what we have already gained, and not to persevere in an eager and useless pursuit of riches.
Gold and silver from universal assent are become necessary as mediums of commerce. In a certain degree therefore they are desirable. Beyond that proportion, we should consider that we are paying more for them than is their intrinsic value. Whenever we decline the slave trade, the Southern States of America will drain Europe of these metals as much as the Indies did before. We shall then have occasion to guard against an excess instead of a scarcity.
Before I finish this chapter, I must say a few words on the subject of interest or the premium for the use of money. According to the value of money is the denomination-value of every thing else in an inverse ratio. And the value of money is in proportion to the lawful interest. It has been the custom of countries supported by artificial means to reduce the interest as much as they can. Perhaps on consideration the practice will be found detrimental to landed property. Men who have views of selling their property and removing to other countries may find an advantage in raising the denomination-value here of estates. But it is our business to keep it rather below the par of others: because it retains the rich inhabitants among us; because the real value computed from utility is the same, or rather is greater according to the use made of it; because the comparatively low price attracts the industrious of other countries to settle among us; and because it enables our own people in articles wherein we vie with others, to manufacture cheaper, or oblige others to sell us at a lower rate.
Where profit is easy to acquire, the premium for the use of money, which is the medium of commerce, ought to be high: And this circumstance must and will fix the value and rate; and not, as generally believed, the quantity of the metals, which intrinsically are less estimable than cheaper forms. Even paper money prudently issued, will support a credit.
This is a subject which has been as little considered as it well could be. In arbitrary governments, the common policy has esteemed an encrease of numbers, as an extension of authority. And the conduct of kings informs us, disguise it how they will, that each aspires after universal monarchy. But the business of ingenuous men, is to seek the general happiness of their own society, and to pursue it by whatever steps it is best attainable. The happiness of those who at the time compose the society, is the object in view. And an addition of numbers is no further advisable than as contributary to the advantage of the former inhabitants.*
A constitution so equitable and uncommon, will excite the discontented of other countries to swarm in upon us, except some inhibitory measures are taken on our part; and the consequence will be the minority in their own country. The truth is, that such an admission will be prudent as shall proportionate the inhabitants to the extent of land, in such a manner that a decent maintenance may remain to each and that all may not be obliged to jostle one an other. But under such inviting circumstances, we ought not to incline indifferently to receive every particular that offers, but to select those, whose reception will be not only consequentially but immediately advantageous to the Republic, as well as to themselves.*
Natural boundaries, such as mountains and rivers, between us and other States, are desirable, because permanent and serving to obviate contentions. But extension of empire is destructive of peace and enjoyment, and tends only to involve us in inextricable difficulties. Single marriages, because natural from the attachment of the sexes, and necessary for the maintenance and care of children; ought to be enforced. To prevent clandestine amours and to countenance unions formed by passion instead of interest; marriages should be encouraged at an early age. Restraints within certain degrees of affinity are just and political: For without these, we should degenerate into a number of petty distinct tribes, instead of forming one family from the whole nation taken together.
Habitation regards the propriety of a general dispersion of the inhabitants over the country or of collecting them together into villages and towns.
To consult conveniently, is the duty of men who undertake the guardianship of others. And however early we may be in our attention, now is the time, by purchasing at the confluence natural or artificial of rivers and other suitable places to make public property of parts which will hereafter become the seite of towns: This purchase is necessary, lest individuals should hereafter derive all the advantage from a measure which ought to be equally beneficial to the community in general. However unfit we may be at present for the speculative amusements which attract mankind to assemble and dwell together; the time is perhaps not far distant when hamlets for either pleasure or profit will be formed in most parishes in the State: And it will be much better to use circumspection in our choice of situations than to leave the event to whim and accident.
In the dispositions and plans of towns; it is requisite to reserve large squares for public structures, walks and gardens; to make the streets airy and convenient, by forming them wide and regular; and to place the cemeteries or burying places without the towns.
OF PEACE AND WAR
Peace is the blessing that crowns every other enjoyment; and without it, the most desirable event is imperfect and unsatisfactory. Even the unthinking wretch that apparently delights in war, is tempted thereto by a fancied superiority that confers security, which is of the nature of peace, and by hopes to enjoy hereafter in quiet his ill-gotten plunder.
In short where the distinctions of right and wrong, of just and fraudulent, are weighed and perceived; peace should be maintained inviolate by every consideration of prudence, conscience, and honor.
Nor is it an impracticable undertaking to prevent its infraction; a candid, upright, conduct will equally escape all danger of civil dissentions and foreign contests. The only precaution requisite for nations as well as for individuals, is for each to pursue his own true interest. Machiavelian politics are never necessary, except to carry into effect unjust designs. And the refinements of Statesmen are no ways proofs of genius; but indications of little minds, and of dishonest inclinations.
To secure peace at home, we must preserve a union of interests, and the real good of the Republic must ever be considered and pursued. To secure it abroad, the confederacy*** with our sister States, must be religiously adhered to: And with respect to foreign nations, we must be just towards them, by punishing our own people who wantonly give offence; and towards ourselves, by abstaining from offensive alliances with any. But, I repeat, the confederacy of the States and the convention in Congress ought to be our chief dependence. To make the benefit of it however perfect and lasting; matters of common public concern only, should be cognizable by Congress, and the bounds of authority should be marked with certain precision. To avoid mistrust and jealousy in the nation, the passions should be transferred from the people to the laws. Undefined authority is indicatory of tyranny. And any maxim that the nature of certain relatives is too delicate for inspection, like the idea of a wound that will not bear probing, shews there is a caries at bottom.
In respect to acquisitions by conquest, the hazard of waging war with other nations is great; and the injustice, let the advantages be what they might, an insuperable objection. But exclusive of the consideration of its being unjust, it is*unwise. The booty to be obtained by war, is uncertain as to acquisition; it is dissipated with as little care as it is gained; it subjects the parties to the extremes of abundance and indigence and of consequence to the feelings of tumultuous passions, and leads to rapacity, vicious indulgencies, stupid indolence, and slavery; it destroys the equality among mankind, and instead of the just distinctions of industrious and idle, wise and foolish, old and young, substitutes the factitious of lords and vassals.** And as to a doubtful or unsuccessful war, no pen can describe the horrors of it. From woeful experience we can form some judgment concerning it. But however we have suffered already; it is nothing to what we on a future occasion may. Mercenary armies are always unfeeling and unjust: But the fury of such as we have already had among us, has been often restrained by the compunctions of conscience and by the fancied necessity of preserving appearances.
OF A NATIONAL CHARACTER
An unsullied character is perhaps as serviceable to collective bodies as to individuals. Let a state be remarkable for a pious observance of treaties, and a greater confidence will be placed in them by others. By such means, one advantage at least is gained, the prevention of aggression by others from an apprehended infraction of treaties by us.
To merit a good public name, we must lay the foundation by first establishing the quality of private characters. Laws wisely ordained and vigorously enforced must suffer no sinister purposes to interfere with public designs; and no ill-placed confidence or imaginary convenience must be allowed to sap the constitution by dispensing for a moment with its operation.
So much of Religion ought to be the care of Government as regards attendance at places of worship on stated days, where resignation should be declared, and prayers offered, to our universal creator; and where the incontested doctrine of his supremacy and omniscience, and the advantages of morality, should be preached. A general toleration of course should be allowed, for right judgment is not to be expected from every man, and the intention of the superstitious and mistaken is to act right if they can.
Able Financiers in their mode of taxation, will sometimes bring money into the treasury by the same step by which they benefit the people; at other times they will raise a fund by measures the least burdensome that may be, and at worst, by ways equally burdensome to all.
Under an independent government, expences will be necessary; nor ought we to expect to contribute at the same moderate rate as before. To make the burden as little grievous as may be, judgment must be exerted in the determination of peace; and the original levies must be as little as possible reduced by useless offices and collectors appointed for private ends, or from a complication of ways in many respects hurtful to a country.
Duties on importation and exportation should be imposed from political motives, and never for the sake of supplies only.
Perhaps an opportunity occurs at present to establish funds for Government expenses on a durable lay. Large tracts of land lie yet ungranted, which may as well be disposed of in short leases as given or sold: Or at least they might be exchanged for others convenient for building of towns, the houses or areas of which might be leased for the same purpose.
We all know the mutual benefit derived in other countries from the postage of letters. Public carriages and stage conveniences might perhaps be made equally useful. Artificial canals for inland navigation offer another constant income: And at worst our own custom, a little methodized, of a tax ad valorem is equitable and unexceptionable.
To limit the expenses of Government as much as we can, appointments should be rather honorary than profitable. There will be more propriety in this, if the nomination is in some degree rotatory. A government, must be fundamentally weak that cannot shake off a set of leaches who manifestly prey on its vitals. And it would be a very faulty beginning that sets out as others end. Our decision on this occasion will probably fix a criterion of our destiny. And we shall soon be enabled to conclude whether we yet stand on firm ground, or have another revolution to expect to fix and settle us.
ON MODES OF DEFENCE
There are three ways of defending ourselves from an enemy; by a naval armament, by a standing army, and by militia.
A navy is not to be formed on a sudden, nor are mariners to be obtained without extensive commerce and successful navigation. Unluckily for us, most of our trade hitherto has been carried on in British bottoms, manned with British seamen. It is incumbent on us to establish some academy wherein children may receive the necessary instructions to fit them for the sea service; by means of which surfery, natives of the country may be found to navigate our vessels: For such alone will be ready when occasion calls, and will be proper to rely upon.
An encreasing commerce almost without limits must when well regulated, create mariners. Most certainly every requisite to compose a navy, is within our compass: I know not any article of ship’s stores except canvas, which has not been produced here already, and of that we have the rough ingredients.
A conclusive reason in favor of a naval armament, is, that we have nothing to fear except from seawards; and that a navy is never dangerous to the liberties of their country. And is it not possible to build and maintain a navy almost without expense? Where is the impropriety of using our vessels of war as freighters during peace and of the Public becoming the carriers of our produce? Would not such a conduct always command seamen and fairly surmount a difficulty which forces others to recur to the odious practice of impressing?
* But what shall I say of a standing army? Under the best discipline they are a nuisance to society; and serve to introduce a system of laws repugnant to civil liberty. Are they not rendered useless by a navy? Are they not a doubtful good, which may either establish or overturn the constitution of the country?
Use, which reconciles us to a homely visage, has enured us to consider this as well as many other** innovations of very modern times, without aversion; but this does not render the measure less deformed and irregular. I acknowledge that standing armies have been maintained in ancient times, but it was only during the decline of liberty. Why will we persist in the pernicious examples of others? Measures to be suitable, should grow out of the occasion, and be independant of usage. Standing armies were introduced by ambitious men, and intended not as means of defence but of offence. A well regulated militia*** will answer every purpose even of garrison duty; and what they are deficient in, a navy should supply.
It is not the interest of any power on earth to be on unfriendly terms with us, and with God’s favor and our own endeavors, we may become necessary to most. It is nevertheless our duty to be on our guard. And the greatest degree of safety arises from annihilating the danger.
Money has been called the sinews of war, but the best provision is, the articles which money is wanted to procure; and such are certainly more valuable in the outset. We should therefore be well provided with warlike stores.
The teloque animus praestantior omni, preferred by Lord Bacon, in his essays, to money, is the natural consequence of a free system. But so far is money from being the sovereign good, that the absence of it has been the salvation of these United Republics. I speak to men who know the world. Had we been possest of money, many reasons would have determined the different States to levy mercenary troops instead of depending on militia.
I will shew what would have been the consequence. Want of abilities and experience and the inevitable confusion of the times have occasioned many irregularities. If I am asked what these are, I reply. Unlimited* trusts that have left the private citizen without the benefit of a habeas corpus; acts of Assembly assuming at one time the power of forming constitutions, at another of setting aside trial by jury and the right** of defence; and the odious prerogatives of purveyance and pre-emption allowed to both military and civil establishments.
A State under such circumstances like a body under fermentation, is laboring for a change. The dissatisfaction and impatience inseparable from the people in such conditions, have a natural tendency to make them indifferent*** concerning what it may be. Nor were bad men ever wanting in any country to excite unjust undertakings.
That no such undertaking has been formed; you owe to the virtue of some individuals and to a numerous warlike militia. And that militia you owe to the want of money.
OF THE LAWS OF NATURE AND NATIONS
In the preceding part of this essay, a sufficient detail is given of the law of kindness, which is properly the law of perfect nature.
It may not be improper to expatiate a little concerning the laws of necessity, which, from the condition of humanity, all have been obliged to recur to in the best of times in some degree or other. These consist of the Law of Interest, of the Law of Retaliation, and of the Law of Self-Defence.
The Law of Interest imposes on every individual a care of himself, and impels mankind from their experience and sensibility reluctantly to consider those, who are not well-affected towards them, as disaffected from the following axiom: Whoever does not confine his views of advantage to kindness and equality, expects to be bounded only by inclination and opportunity.
This is no way irreconcileable with the law of kindness, which is only with held from action, not extinguished, hereby: For he who under such circumstances, does not help himself when he has it in his power, neglects the sole chance that can be presented to him.
This is therefore the necessary condition of men, where the law of kindness does not intimately unite them. More or less of this law intrudes itself into and sows dissention in every government in proportion to the degree of imperfection in its policy; but as the interests of people of the same community are necessarily mutual in some particulars, the law of interest at such time gives way to the law of kindness or assumes its appearance.
The next stage of necessity is the Law of Retaliation or Reprisal, when the mischief done is not confined to acts of advantage to ourselves, but is governed by the affront received and by the principle of aspiration asserting our independancy and due consequence. Kindness is by no means inconsistent with this proceeding: And, the person retaliating often wounds his own feelings by the same act by which he afflicts others.
The last resort of necessity is when the inveteracy and malice of enemies compel others in Self-Defence to oppose or even to destroy those whose safety is incompatible with their own. Their destruction however is warrantable only when every other expedient would prove incompetent.
The Law of Kindness with as small an alloy as possible of those of necessity, is the natural law of civil society.
The Law of Interest is the Law of Policy or Law of Nations in a tranquil state; which law of nations admits of a portion of the law of kindness, when engaged thereto by articles of alliance between separate States; and of the law of defence when urged thereto by the violence of others.
Here then the line should be drawn as the limits appear.
Ques ultra citraque nequit confutere rectum.
All unprovoked assaults therefore which are pernicious to others and not profitable to the assailants themselves, even supposing no breach of positive agreements, cannot be vindicated by the laws of God or man, but are contrary to all maxims of prudence, justice and honor.
In case of positive agreements, whether implied or exprest; if equitable, each person is obliged to observe them by every consideration of duty and justice, and to be guilty of a breach of them, is to incur disgrace and infamy; but if unequitable, the obligation is the force and the danger of withstanding it.
[* ] Ce qui ne vaut rien dans son principe, ne peut pas devenir bon dans la suite.
elements de longione
[** ] In truth government is a thing not so much as known in by far the greatest part of the earth. Government supports on one side a just execution of rational standing laws made by the consent of society; and on the other side a rational subjection to those laws. But what has arbitrary will, wanton and outrageous lust, cruelty and oppression to do with government, but to destroy it?
cato’s letters by Gordon and Trenchard
[* ] Let us therefore lay down as a maxim that whenever the Public Good happens to be the matter in question, it is never for the advantage of the public to deprive an individual of his property, or even to retrench the least part of it by a law or political regulation—The civil law should, with the eyes of a mother, regard every individual as the whole community.
[* ] It is from the latter circumstances, that the liberty of the press becomes so essential to freedom.
[* ] Men of the best and brightest characters have often done most mischief, and by well serving their country, have been enabled to destroy it: Numberless instances might be advanced of this.As when the sea breaks oer it’s bounds,And overflows the level grounds.Those banks and dams, that like a screen,Did keep it out, now keep it in.hudibray
[** ] In every human society, there is an effort continually tending to confer on one part the height of power and happiness, and to reduce the other to the extream of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally. But men generally abandon the care of their most important concerns to the uncertain prudence and discretion of those, whose interest it is to reject the best and wisest institutions.
Human society has often had no enemies so great as their own magistrates; who wherever they were trusted with too much power, always abused it, and grew mischievous to those who made them what they were.
[*** ] Extrema per illes
Justitia excedens terris, vestigia secit.
Ultima Caelestum terras astrea reliquit.
Poets are not always philosophers, but they often convey the sense of mankind; and here is concurrent testimony.
[* ] And they give the name of peace to this general effort of all against all.
[** ] The grievous forest laws of England fell into disuse during the revolution in 1688.
The restoration of Charles 2d. occasioned other advantages.
[*** ] It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by act of Parliament, to be felonies without benefit of clergy.
[* ] Whatever laws deviate from the principles of justice, will always meet with a resistance, which will frustrate them in the end.
[** ] Lewis the Gross, in order to create some power that might counterbalance those potent vassals who controlled or gave law to the Crown, first adopted the plan of conferring new privileges on towns.
The usurpations of the nobles were become unbounded and intolerable. They had reduced the great body of the people into a state of actual servitude.
[**** ] Tyrants reduce mankind to the condition of brutes, and make that reason which God gave them, useless to them. They deprive them even of the blessings of nature; starve them in the midst of plenty, and frustrate the natural bounty of earth to men. The very hands of men given them by nature for their support, are turned by tyrants into instruments of their misery, to gratify the lust and vanity of their execrable lords.
[*** ] Under all these distressing circumstances, it was impossible that they could retain vigour or generosity of mind. The independent spirit which had distinguished their ancestors, became extinct among all the people subjected to the Roman yoke; they lost not only the habit but even the capacity of deciding for themselves, or of acting from the impulse of their own minds; and the dominion of the Romans, like that of all great empires, degraded and debased the human species.
robertson’shistory Charles Vth
[* ] Sir William Temple, Sir William Blackstone.
[** ] Many have inclined to compliment a prince with a power which made all men, and themselves among the rest, depend for their life and property upon his breath; for no other reason than that it made many others depend at the same time upon theirs.
[* ] The order of things is always inverted, when any man or set of men, instead of preventing wrong from being done, arrogate to themselves the power of doing wrong.
[* ] By the laws of Arragon, the ricos homres were not subject to capital punishment.
robertson’shistory Charles Vth
Nor was a citizen, by the laws of Rome.
The punishment of death is the war of a whole nation against an individual.
The countries and times most notorious for severity of punishments, were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were directed by the same spirit of ferocity.
A man or set of men have no more power over lives of others than they have over their own lives, nor by one degree so much.
[* ] The Julian law de ambitu indicted fines and infamy on all who were guilty of indirect methods of corruption in cases that regarded public concerns.
[** ] Laws whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference; are laws destructive of liberty.
The liberty of the press is the palladium of all civil, political and religious rights.
Negligere quid de se quisque sentiat: con suium arrogantis est sed etiam omnino dissoluti.
Cic. de Off.
[* ] Constancy and uniformity of design are necessary to cause duration. “Since the world” says Montesquieu “subsists through so long a succession of ages, it must certainly be directed by invariable laws.”
When the best plans possible are designed and adopted, there is neither room nor occasion for alterations.
Analysis of Man
[* ] Men will ever govern or influence those whom they employ, pay, feed and clothe, and who cannot get the same necessary means of subsistance upon as advantageous terms elsewhere. This is natural power.
Arguments deduced from the nature of mankind, are literally ad hominem, within the ken of all possessed of common sense; and when just, demonstrative beyond a possibility of doubt. Republics end with luxury, monarchies with poverty.
The effect of wealth is to inspire every heart with ambition; that of poverty is to give birth to despair.
[* ] The good sense and happiness of individuals depend greatly on the mediocrity of their abilities and fortunes.
L’Esprit des Leix.
[** ] Nothing but the very excess and rage of despotic power ordained that the father’s disgrace should drag after it that of the wife and children.
[** ] Cessante ratione legis unica et adequata, cossat ipsalex.
[* ] Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical.
[* ] The best security of a Governour, is the affections of the people, which he may always gain by making their interest his own. They will then, as they love themselves, love him, and defend him who defend them. This is the natural basis of superiority and distinction.
[*** ] It is a custom destructive of right, to permit men in public capacities, to arrogate to themselves judgement concerning those privileges. The error is of boundless consequence that invests fallible men with what are called sacred characters, or that imparts excessive authority to any.
One of the evils civil government was intended to remedy, is to prevent men from being judges in their own causes.
[** ] The most certain method of preventing crimes, is to perfect the system of education.
marq. of beccaria
[* ] Cato the younger said, he considered the Public, as the proper object of his care, zeal and attendance; and not as a bank for his private wealth, or a source of personal honours.
[* ] That government so easy, where the people find or fancy they find, their own happiness in their submission.
There are but two ways to govern a nation: One is, by their own consent; the other by force: One gains their hearts, the other holds their hands. The first is always chosen by those who design to govern for the people’s interest, the other, by those who design to oppress them from their own.
[* ] Whoever desires only to protect the people, will covet no useless power to injure them.
[** ] The supposition of the law is that neither the king nor either House of Parliament, collectively taken, is capable of doing any wrong,—Since in such cases, the law feels itself incapable of furnishing an adequate remedy.
Shall not our prudence supply a remedy?
[* ] Constant experience shews that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.
It is not to be expected from human nature, that the few should be always attentive to the interests and good of the many.
We have every thing to fear from those, who hold a power inconsistent with liberty.
No wise nation ever trusted to the sole management, mere mercy, and absolute discretion of its own magistrate, when it could help doing it. In truth, where magistrates are most limited, it has been often as much as a whole people could do to restrain them to their trusts, and to keep them from violence.
Not to provide against these sinister events (which if they are not always certain consequences, most certainly may and will be consequences sometimes) is madness or stupidity.
Ne offeramus nos periculis fine causa: quo nihil potest esse stultius.
In tranquillo temestatem adversam optare, dementis est.
[** ] The Legislative power, when the territories of a State are small, and its inhabitants easily known should be exercised by the people, in their aggregate or collective capacity, as was wisely ordained by the petty republic of Greece and the first rudiments of the Roman State.
[* ] The power of reviewing the proceedings of all inferior courts, the privilege of inspecting every department of administration, and the right of redressing all grievances, belonged to the courts of Ariaten—Nor did those who conceived themselves to be aggrieved address the Cortes in the humble tone of supplicants, and petition for redress; they demanded it as the birthright of freemen.
robertson’sHist. Chs. Vth
[** ] It would be a matter of indifference from what part of the Republic the Legislative body was taken; if, after election, the members are free to act of their own accord, instead of abiding by the direction of their constituents. What nation in their senses ever sent ambassadors to another without limiting them by instructions.
[*** ] A good government is not that, where the well or ill being of the subjects depends on the virtues or the vices of the rulers; but when the well or ill being of the rulers necessarily follows or depends on the well or ill being of the subjects.
Memoirs of Holland
[* ] Would you prevent crimes? Let the laws be clear and simple; and let the laws be feared, and the laws only.
Every member of society should know when he is criminal and when innocent.
Happy the nation where the knowledge of the law is not a .
[** ] It is much easier to feel a moral certainty of proofs than to define it exactly, and safer to judge from our feelings than by opinion of a knowledge of the law.
Men feel with sensibility and describe with force, when they have made but little progress in investigation or reasoning.
[* ] Non tamen plura legibus civilibus sancienda sunt, quam ad bonum civitatis et civium conducunt. Nam cum de eo, quod facere vel non facere debent, foepius per rationem naturalem, quam perscientiam legum homines deliberate solent; ubi plures leges sunt quam ut facile memoria comprehendi queant; et per eas prohibeantur ea quae ratio per se non prohibet, necessae est, ut per ignorantiam sine uila prava inentione incidant in leges, tanquam in laqueos.
Qui leges et officium alicui injungit, efficere solet et debet, ut in notitiam subjecti illae pervenient. Et ad subjecti captum leges ae regulae officii attemperari solent et debent: circa quas conoscendas et retinendas quemlibet solicitum esse oportet. Unde qui est causa ignorantiae, respondere etiam tenebitur de iis actionibus quae ex ille ignorantis promanant.
Nullam esse legem, quae aliquam rem , aut iniquam, fieri velit.
Cic de Invent.
Onmes leges ad commodium reipub. referre oportet; et eas ex utilitate communi, non scriptione, quae in literis est, interpretari, Ibid.
Alteram etiam legum conditionem addere oportet, seilicet, ut nihil in se contineant superiori alicui legi contrarium, alter non obligant.
johnson and puffendorf.
Laws not sufficiently promulgated, like laws ex post facto, are acts of tyranny, not of reason.
[* ] The appeals admitted in courts of chancery from day to day and from court to court upon questions merely of fact, are a perpetual source of obstinate chicane, delay, and expensive litigation.
[* ] It is an admirable law which ordains that every man shall be tried by his peers; for when life, liberty, and property are in question, the sentiments which a difference of rank and fortune inspire, should be silent.
The sole balance of the faedal times which the people had against the nobility, was the trial by jury: As it will always prove the best defence on every other occasion.
Trial by jury was the bulwark of Gothic liberty.
[** ] It is a kind of quackery in government and argues a want of skill to apply the same universal remedy, the ultimum supplicium to every case of difficulty. It is, it must be owned, much easier to extirpate mankind than to amend them.
[** ] The punishment of a crime cannot be just, that is necessary, if the laws have not endeavored to prevent that crime by the best means which times and circumstances would allow.
m. of beccaria
[* ] Great is the superiority which a creditor has over a debtor in having money to lend.
[* ] Ubi divitiae clarae habentar, ibi omnia bona vilia sunt, fides probites, pudor, pudicitia. Nam ad virtutem una et ardua via est; ad pecuniam, qua ciuque lubet, nititur; et malis et bonis rebus creatur.
[* ] There are countries where a man is worth nothing; there are others where he is worth less than nothing—With the enjoyment of a small territory and great happiness, it is easy for the number of citizens to increase to such a degree as to become burdensome.
[* ] In Holland and West Friezeland, letters of naturalization do not render a person qualified to hold places either of honor or profit but only communicate protection and the benefits of the law.
Resolution prise parles etats. 25th Sept. 1670.
“Mais pour ceux qui sont nez en Hollande, c’est leur naissance, qui les fait Hollandois, & l’on ne pent leur donner l’exclusion des charges. C’est la le Droit commun a toutes les nations, qui donne aux enfans pour patrie, la terre ou ils sont nez.”
Dissertation sur las Naturilization
[*** ] A Republic of this kind able to withstand an external force, may support itself without any internal corruption: The form of this society prevents all manner of inconvenience.
[* ] The long duration of the Republic of Sparta was owing to her having continued in the same extent of territory after all her wars.
The spirit of monarchy is war and enlargement of dominion: Peace and moderation is the spirit of a Republic.
A conquering Republic can hardly communicate her government and rule the conquered State according to her own constitution.
[** ] War is comprehensive of most if not all the mischiefs which do or ever can afflict men. It depreciates nations; lays waste the finest countries, destroys arts, sciences, and learning: butchers innocents; ruins the best men and advances the worst; and introduces confusion, anarchy, and all kinds of corruption.
[* ] The supreme power in every country is possest by those who have arms in their hands.
That government is certainly and necessarily a military government, where the army is the strongest power in the country.
[** ] Mercenary troops were now introduced into all the considerable kingdoms on the continent. They gradually became the only military force. It has long been the chief object of policy to increase and to support them, and the great aim of princes or ministers to discredit and to annihilate all other means of national activity or defence . . . Efforts made on these occasions gave the people of Europe the first idea of the expence which accompanies great and continued operations, and accustomed them to the burden of those impositions which are necessary for supporting them.
[*** ] The Roman Legions who conquered so considerable a part of the world, were draughted citizens or militia.
[* ] They wanted to make the laws reign in conjunction with despotic power; but whatever is joined to the latter loses all its force.
[** ] Closarius made a law that no one should be condemned without being heard; which shews that a contrary custom had prevailed in some particular case or among some barbarous people.
[*** ] It was not affection for the Stuart family or preference of kingly government, but love of regularity and ease that occasioned the restoration of Charles the second.