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LETTER III.: Remarks concerning some important Objects which regard the Legislation of the United States of America. - Gabriel Bonnet Abbé de Mably, Remarks concerning the Government and Laws of the United States of America: in Four Letters addressed to Mr. Adams 
Remarks concerning the Government and Laws of the United States of America: in Four Letters addressed to Mr. Adams, with Notes by the Translator (Dublin: Moncrieffe, 1785).
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Remarks concerning some important Objects which regard the Legislation of the United States of America.
Particularly to investigate the nature of the laws, by the force of which the other United States of America have established amongst themselves a public power, were to proceed upon a useless task; and I must, unavoidably, fall, during the execution of it, into unmeaning and tiresome repetitions. I should imagine that the observations, which I had the honour of submitting to you, in my last letter, when adverting to the three republics, the constitutions of which particularly attracted my attention, are not less applicable to all the rest. And I must now add that should the citizens of Massachusets, Pennsylvania and Georgia labour, as the result of a fresh revisal of their constitutions, more unexceptionably to proportion their laws to the exigencies of the times and circumstances which surround them; should they attend not less to provions for the future than to arrangements for the present, should their regulations establish a juster equilibrium between the legislative and the executive power; should the ambition of the people, less stimulated by the idea of rights and those hopes with which democracy inspires them, feel no occasion to make convulsive efforts in order to defend their dignity; and should the rich perceive before them a sufficient number of impediments to conquer the presumption and audacity which might otherwise incline them to trample upon their inferiors; these republics would serve as models to the rest, who might become in their turns, more guarded through all their conduct; and, doubtless, profit by examples immediately before their eyes; nor, were any troubles to prevail, would these others withhold their offers to step in as mediating parties; in which case their character for wisdom would give weight to their negociations, and, by gentle degrees, sound principles would become established throughout the whole consederation.
The three republics which I had the honor particularly to point out to you are those only where the citizens have felt the value of sound morals and a proper education; or where, at least, they have made these advantages the subject of their remarks. The legislators of Massachusets are not attentive solely to the purpose of giving greater scope to all the emanations of our understanding, but, feel an ardent desire deeply to engrave upon the hearts even of their children “the principles of humanity and general henevolence, of public and privatecharity, of industry and frugality, of honesty and punctuality in their dealings, of sincerity, good humour and all social affections, and all generous sentiments among the people* .” Even this would prove no more than empty declamation, were the republic to delay one minute in the business of arranging those actual establisnments which are to carry into practice this beautiful and accomplished theory; for, the virtues which the American youth may have imbibed with the first elements of their education will scarcely last through any length of time, if, at their entrance into the world, the morals of the citizens may throw before them patterns of a contrary complexion. I perceive, therefore, with concern, that legislators, howsoever guided, at one moment, by consummate wisdom, have not admitted into any part of their system a set of fixed and constant rules for the preservation of sound morals. On the contrary, they discover a strong desire to favor the progress of commerce; and they open a door for avarice, by directing, for instance, that the governor shall have an honourable salary equal in all respects to what the nature of his post may call for* .
I, on the contrary, could wish that, in proportion to the importance of the dignities, the salaries annexed might be the less considerable. I should even like to see the abolition of all salary whatsoever* . The Americans are no longer the subjects of the king of England. At this æra, they are free men; and should my opinion appear in their estimation as rigid and unpolished as it may seem in Europe, it will be impossible for me to avoid drawing from this circumstance an unfavorable omen for their posterity. Under a monarchy, money may make great lords; but, in a republic, it depreciates and sinks the magistrates. It is not either covetousness, or ambition, or luxury, or pomp which does them any honor. They little love their country who ask a salary for serving it. The citizen who little loves his country has but a trifling portion of intrinsic merit; and, thus scantily supplied with worth, by what miracle can he become a great and virtuous magistrate? Why cannot a governor, who should possess a decent fortune of his own, prove generous enough to devote, without pecuniary rewards, one or two years of his life to the service and interests of the republic? This is the critical moment for the Americans. If, already, their morals are of such a stamp as to render it necessary that they should purchase magistrates, this detestable principle, mixing with the general temper of the citizens, will lower and disgrace the whole collective body. But, let the republic of Massachusets, at one bold stroke, destroy the law concerning which I am now complaining. Let the chief magistrate display, but for a single time, his own disinterestedness: then, every citizen, aspiring to the honor of succeeding him, will imitate this example of his generosity; and the virtue must become, at length, common and familiar. Yet, give me leave to add that, in order to preserve this virtue, you must encourage the citizens to look without a blush on their simplicity. It is requisite to prevent, by sumptuary laws (laws favorable to the support and influence of sound morals) the progress of luxury, to diminish the wants of effeminacy and vanity; passions which overleap all bounds; which overturn, at length, monarchies themselves, and, in a moment, destroy republics. It is by this public and general discipline alone that you can truly and effectually work up and finish the education of your children.
North Carolina and Georgia are sensible of the advantages of education, but continue silent respecting morals. Is it because these two states are ignorant of the power of morals?
“Quid leges sine moribus vanæ proficiunt?”
We may discover with pleasure that the legislators of Pennsylvania have turned their attention to this object* ; but, praising virtues, they should take measures to secure for them the public reverence and affection* . This point becomes of so much the greater importance, because the more a government is democratical, the more should uncorrupted morals maintain their empire within it. The people, led rather by their habits than by their understanding, and continually weak and subject to the influence of a multitude of prejudices, without resisting, become the sport of all their varying passions and opinions, and remain ignorant of those different temperaments to which the principal citizens of an aristocracy are accustomed, in consequence of their own interests. Yet, Pennsylvania will not attend with actual advantage to the preservation of the public morals but in proportion as she applies herself to the great object of correcting, in the chief citizens, those vices from which it is the least natural that they should remain exempted. Successfully to labour at the accomplishment of this point, it, certainly, would be right not to limit the authority of the council of the censors to the enquiry whether the constitution has been preserved inviolate from all encroachments* . This council, appointed to assemble every seventh year, seems, at the first glance, sufficiently favourable to the maintenance of the public peace and welfare. Hopes were, doubtless, entertained that this establishment would keep unruffled the patience of those citizens who might have felt just causes of complaint, but whom the prospect of soon obtaining a reparation for their wrongs might, also, hinder from forming cabals, from carrying on intrigues, or having recourse to measures of unusual violence. Yet, give me leave to ask, what would prove the conduct, and what the power of these censors, from whom the Pennsylvanians expect the perpetuity of their laws and of their government, should they not meet with the encouragement and support which are the natural result of the generally sound morals of a republic. They, probably, would experience the fate of the Roman censors, who notwithstanding that they had rendered such great services to their country, became, at length, of no use to it, when corruption, introducing a contempt for laws, obliged them to remain silent. An inclination that the council of Pennsylvanian censors should execute the duties of their office would, necessarily, have given occasion to the act of joining, with the power which they possessed, the care of foreseeing and preparing against the intervention of abuses, of watching over those symptoms which announce the approach of some new vice, and of running to the succor of some laudable custom, of some well-accepted usage, and of some virtue which might appear upon the point of either suffering a change, or sinking into imbecility. I acknowledge that, even in spite of these precautions, my confidence would not grow riveted beyond the power of wavering. A very slight reflexion upon the nature, the bent, the motion and the progress of the passions must convince us how indispensably necessary it is that they should remain under a strict subjection to a most vigilant and a perpetual censorship. Unless the state of Pennsylvania should resolve to open its career by taking the morals of the citizens under its protection, by meeting them with encouragement and driving to an insuperable distance all obstacles and seductions which might reduce their vigor, and destroy their welfare: I should dread lest that council, which assembles, only every seventh year, for the purpose of repairing the injuries experienced by the constitution, and of preserving all its principles inviolably secure, might prove, of all others, the most unserviceable, and even destitute of the power to stem the torrent of the public morals.
Although I do not entertain a single doubt of your conviction that all laws, without the aid of morals, are superflous, you must permit me to expatiate upon a subject of such importance. And here, I would intreat the United States particularly to bear in mind that they stand more in need of the assistance of morality, and of those establishments under which it has the power of rendering agreeable, and even dear, to all the citizens, the practice of the most necessary virtues; because, in this respect, they scarcely can acquire much advantage from religion, which the policy of all nations has, nevertheless, considered as one of the most powerful springs that puts in motion the feelings, sentiments and passions of the human heart, and that draws out the faculties, and directs the operations of the mind.
Your ancestors were engaged in laying the first foundations of your colonies, at an æra when England, busied, like the rest of Europe, in theological disputes, was torn in pieces by that fury of religious wars. They fled from that country within the bosom of which fanaticism predominated, and, filled with just and natural horror against the absurd tyranny which levelled its attacks against their consciences, they regarded, as the height of happiness, the liberty of serving and honouring God after that mode which was, according to the idea of the worshipper, the most rational. This manner of thinking became the first principle and the conduct of your forefathers; and their children (if the expression be allowable) have sucked it with their nurses milk. From your constitutions it appears that this indefinite liberty of conscience still rests upon the declared and general opinion of your republics. But, circumstances are no longer the same. You have, now, emancipated yourselves from all subjection to the English who, at a former period, provided for your security. At present, you are obliged to govern yourselves by yourselves; and, perhaps, by granting the same rights to all the different sects, who are become habituated and familiarised to each other, you may experience the necessity of restraining your extreme tolerance, for the purpose of preventing those abuses which may start up as consequences of its unbounded lenity.
Since religion exercises over the human mind a dominion the most absolute, it, most undoubtedly, would prove a circumstance of infinite advantage, were all the citizens, united by the same form of worship, to pay obedience to the same divine laws, in like manner as they live under subjection to the same political institutions. And thus, for the purpose of rendering them happy, would religion join her powers to those of government. I well know that the United States can no longer aspire to the enjoyment of this liberty. The gospel, which serves as a common and general rule to all the sects which separate you from their opinion, inculcates the duty of peace and the love of our neighbor; and the government which draws together so many different religions, protects them all, in order to act with full conformity to the rules of Christian charity. But, give me leave to ask you whether you have adopted proper measures for preventing other religious innovations (to which you yet are strangers, and against which it will become you to put yourselves upon your guard) from breaking in to trouble your repose, and to renew in America those bloody tragedies of which Europe has been, through too considerable a length of time, the theatre* ?
You, certainly, are not blameable for having reduced the ministers of religion to the necessity of teaching it. Would to Heaven, that the emperors, the kings and the princes who embraced Christianity had not, in exchange for those spiritual blessings which they received from the ministers of religion, so profusely laden the latter with riches, with dignities and with temporal grandeur! This was sowing tares within the field of the husbandman; and these tares have, in fact, choaked up the wholsome grain: the spiritual concerns have most obediently given place to temporal concerns.
The legislators of American confederation have taken an effectual care to avoid dashing upon this rock. The ministers of the different religions whom you admit into your states enjoy only that protection which is afforded by the laws to all who live beneath their influence; yet, they are not citizens, because they bear no part either in the public or the political administration of affairs. Exclusive of all this, the mediocrity of their benefices keeps cool and properly attempered the various emotions of their passions. Great possessions do not intice them, as in Europe, first, to confound together, and, afterwards, to prefer their temporal interests to the interests of religion. This is, indeed, a point of much service and importance. Yet, why should you, in some measure, have cast a damp upon the minds and spirits of men to whom has been consigned the task of teaching systems of morality? You appear to mistrust them; and thus, possibly, may check their inclinations to look with love and reverence upon your laws. What would it have cost you to testify the esteem which, most undoubtedly, you owe to several of the ministers of your religions? It would have proved sufficient had you permitted them to vote at your elections* , and not excluded them from all public offices, except under the pretext that it might become unwarrantable to draw them in the least aside from those important functions with which they are particularly charged† . It is thus that in Europe the state has disencumbered itself of those ecclesiastics whose power incommoded them, and who forgot to preserve inviolate the sacred nature and the duties of their ministry.
But, let me pass to an observation of more consequence. Are you not in dread left from this mixture of such a diversity of doctrines, a general indifference should arise concerning the particular worship of each of these religions? This worship is, notwithstanding, necessary to prevent a degeneration into deism, which cannot, possibly, impart stability to politics, except in cases where individuals exist whose understandings are above the common level; who can meditate, of their own accord, upon the wisdom of God, and know what duties are exacted from them by the precepts of morality. These deists may be virtuous; but the worship, to which they have been accustomed from their birth, becomes, by gradual degrees, a matter of indifference; they neglect it, and their example destroys the whole spirit of religion in that croud of citizens who are incapable of supplying the place of it, and of instituting a set of principles for themselves. Then, do we perceive established amidst the multitude a species of gross atheism which accelerates the ruin of the morals. Attached, and groveling to the earth, the people no longer lift up their thoughts to Heaven, but forget the SOVEREIGN MASTER OF THE UNIVERSE!
Wherefore do I read in the laws of Pennsylvania that, “no man who acknowledges the being of a GOD can be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship* ?” Keeping to the Christian religion, can you reasonably fear that it will not offer a sufficient number of sects to satisfy the wants of every class of worshippers? Would you, under the pretence of peopling with more rapidity your lands, call thither even those orders of religion which are, of all others, the most strange? I dare not explain my thoughts concerning such a project; and shall only remark that the greatest legislators have always proved less anxious to collect together within their republics a multitude of individuals than to form good citizens, and to unite them by similarity of sentiments. Let me intreat you to reflect that the character of your confederation is but as yet within the rough draft; the mere outlines. A war of seven years has not imparted to your states a national spirit. Under these circumstances, it would prove a great misfortune were a considerable croud of strangers to throw themselves amongst you; to bring with them all their prejudices; and thus to retard the progress of the public manners which should unite and bind the citizens together.
To introduce within your states a multitude of new religions is to throw down amongst them the apple of discord, and to awaken that spirit of dispute and controversy which the present temper of the times has fortunately occasioned to disappear* . Should these new religions obtain proselytes (and there is every reason to dread the circumstance, when we reflect upon the folly of the people; upon their rage for singular and fantastical innovations) what can prevent their exciting hatred, jealousies and bitter quarrels? At such a period, the republic, indeed, might only take an inconsiderable part; for, at the outset, the United States will occupy themselves almost exclusively in the cares of commerce and of agriculture. But, when a different order of dignity with respect to families shall have established itself amongst you (and this too soon will prove the case) when you shall have attained to a more abundant population; and when you shall have been exposed to those dissentions which must inevitably bring on the quarrels of the democracy and of the aristocracy, I should be glad to know what circumstance could prevent a set of covetous, ambitious, hypocritical and designing citizens from associating and blending the operations of these newly rising parties with the projects of their ambition. That which has happened in Europe occasions me to fear for that which must take place in America. The questions agitated by Luther and Calvin would have given trouble only to the schools, if powerful men, who, notwithstanding, despised them, had not affected to respect them, in order to draw over partisans to their own side, and to render themselves sufficiently formidable to give disquiet to the state, and particularly to aggrandize and to enrich themselves.
It appears that the legislators of South Carolina have wandered more than all others from the principles to which a sound policy will adhere, whensoever a necessity arises for tolerating a number of religions. They have enacted that “whensoever fifteen or more male persons, not under twenty-one years of age, professing the Christian Protestant religion, and agreeing to unite themselves in a society, for the purposes of religious worship, they shall be, and be constituted, a church, and be esteemed and regarded in law as of the established religion of the state.” The spirit of such a law is not, as in the other United States, to tolerate all religions, in order to prevent the introduction of fanaticism: on the contrary, it is only proper to keep it entirely awake and to impart to it fresh vigor. Religion presents to us mysterious truths, and the fears and hopes which it occasions should make a powerful impression upon all persons who are capable of thinking. It, therefore, becomes necessary to strive to calm the temper of the mind, and to root out the prevalence of controversy. The law of South Carolina goes on precisely in a contrary direction. All know how obstinately mankind adhere to their particular opinions, how much it pleases them to witness their adoption, and to maintain an absolute dominion over the reason of their followers. To have become the chief of a sect appears a brilliant circumstance; and since Carolina permits every wild reformer of twenty-one to aspire to this honor, by having recourse to the imagination and the ignorance of fourteen as infatuated as himself, she may rest assured that, instead of being limited to one natural religion, she shall become surrounded by enthusiasts and fanatics* .
From the moment that a republic admits within its bosom a diversity of religions which, for the sake of peace, of union, of concord and of charity, enjoy all the same advantages and the same prerogatives, in my opinion, it must follow, as a necessary consequence, that the minister of these religions be permitted to preach and to inculcate their own doctrines. Yet, I could wish that each church, after having published its tenets and its discipline in a catechism, might, thenceforward, become precluded from the power of introducing any change, under the pretext of either developing articles of faith with greater clearness, or presenting truths in more conspicuous and settled points of view. No change should be permitted. Thus, may be prevented the disputes and quarrels of different sects; and other churches may become diverted from too strict and unremitted an endeavor to ascertain in what degree their rights are violated and wounded by the introduction of such innovations. The professors of the various sects will attend less closely to the motions of each other; and the habitude of observing these, without disdain, without disquiet, and without hatred, will, daily, grow more strengthened and confirmed.
The intricacies and windings of the human heart and understanding are so numerous and extended; and time may, or, rather, must, draw on a multitude of circumstances so varied and so fantastical, that it is impossible to take too many precautions against either fanaticism, or that indifference which seems as a preparative to the arrival of a multiplicity of religions. Why, therefore, should not the government, have its own moral and political catechism which they might teach their children, instructing them, at the same time, in the nature of the particular tenets of their forefathers, and of the forms of worship with which they ought to honor the SUPREME BEING? The composition of such a work would prove worthy of the wisdom of the continental Congress. This respectable body of magistrates, on whom depends all the prosperity of the United States of America, would then declare that, the Holy Scriptures being understood and interpreted in different senses by men who have searched after truth, with intentions equally pure and minds equally enlightened, they should fear transgressing beyond the limits of their power, were they to attempt to decide concerning questions on the subject of which Divine Providence hath not declared itself in a manner at once positive and convincing. “It is just and it is pious (would they observe) that all the religions of America, when adoring the depth of the judgments of God, should mutually tolerate each other, since Providence, with equal indulgence, is pleased to tolerate them all. Let us not pass judgment upon our brethren under the fear of passing judgment upon ourselves. Praying sincerely for the revelation and the propagation of truth, let the Americans faithfully observe the form of worship in which they have been educated. Should they commit mistakes, let them rest assured that the Divine Bounty will pardon the error of those men who believe that they are paying from the heart a strict obedience to truth. It is difficult to avoid forming a false conclusion respecting the relations of religion to our God, because they are enveloped by a multitude of mysteries; but the relations of religion to society are ascertained beyond the possibility of dispute. Who can entertain a doubt whether God hath intended to unite all mankind by the ties of morality and virtue; ties whereon is founded the welfare of each citizen and of society?”
I am aware of the objections which the prevailing religion of Europe may make to such a catechism; nor do I mean to argue as a theologian; but rather to confine myself within the observation that it is a necessary consequence of that tolerance from which you cannot deviate. You are sensible that all your religions will feel a disposition to extend to each other that indulgence which you defire. Your offspring who, at an early age, shall have imbibed this doctrine, will preserve its principles throughout the whole duration of their lives. The citizens will become attached to their religion, as expecting from it great blessings, during a second life; nor will they indulge an indiscreet aversion from other religions, because they will procure for their followers the same recompence and the same felicity.
I should desire that in order to form and fix the national character, the catechism of the continental Congress might not rest at this point. Why should this work, without ceasing to come within the level of the comprehension of children, and of men who will resemble them during the whole space of their lives, by either the dullness or the levity of their organs and their understanding, not form within itself a clear and complete treatise of morality? It is easy to expound the nature of all our duties in a simple, short and sensible manner, and every person may draw from it either more or fewer consequences, in proportion to the power or the debility of the intellectual faculties with which he is endued. After having explained the duties of man, in his character of man, it may be proper to consider them as connected with his quality of citizen; and, from this new relation shall we perceive arising new virtues, at the head of which will appear a love of the laws, of the country, and of freedom. I shall then shew, by sensible images and examples, how these three virtues stand in need of reciprocal succor, in order to preserve the full extent of all their dignity. They wander from their mark, and constantly degrade themselves, unless perpetually united. I ask not for metaphysical arguments. Let it suffice that we enlighten simple minds; and point out principles to philosophers who may desire to form magistrates for the republic; that we investigate the power of the human passions; their course, their progress and their union; that we ascend to the origin of our virtues and our vices; and that we stand upon our guard even against ourselves, by presenting to our own eyes a striking picture of our inclination to yield to the deception of the false appearances of happiness and of misfortune.
I have expatiated upon the subject of this catechism, concerning which I, notwithstanding, offer you but trivial sketches. Yet, I ask it from the Congress, not only because I believe that each of your republics will draw from it some points extremely beneficial to the administration of its particular affairs; but because it may still serve to cement and strengthen their union, by gradually imparting to them a similarity of sentiment. The more indisputable to confirm the idea of the necessity of this work, I shall add, that it is extremely dangerous to establish, by a law, the most absolute liberty of the press, in a new state, which has obtained its freedom and independence, previous to the acquisition of the art or science of using it with propriety* . It cannot be denied, that to restrain the liberty of the press is to confine the liberty of thinking: and that, consequently, neither the understanding, nor the morals can make even the most trivial progress. Grant it to all the learned who study the secrets of nature; who seek for truth amidst the shattered fragments of antiquity, and the obscurity of modern times; and who write concerning the laws, the regulations, the decrees and the particular arrangements of the systems of politics and of administration: their errors will never lead to any baneful consequence; their discussions, whatsoever they may prove, will sharpen our understanding; will render it accustomed to well-regulated pursuits; and cast a serviceable light upon morality and politics.
But, the Americans being too much familiarised to the philosophical ideas, the opinions and the prejudices of England, to break loose from them, in a moment, what ground have we to hope that they would not continue to draw dangerous consequences from errors which they might regard as principles, were they to enjoy the full freedom of the press; the unfettered liberty of printing what they chose, before the continental Congress shall have established those truths which are to form the morality, the politics and the character of the confederation? So long as your republics neglect to institute a council, or a senate, to serve them as a palladium, for the purpose of maintaining and of perpetuating the same spirit; what wavering doctrines, what fantastical tenets, what confused and distempered systems must you not expect, when each citizen, who may possess abilities for writing, can, with impunity, amuse the public with his chimerical ideas, and even attack the fundamental principles of society* ?!
It was not thus that the antient republics, which merit our admiration, arranged their forms of government. They stood upon their guard against the imbecility of the human mind; they knew how easily delusion can establish within it her full empire; they were not strangers either to the passions by which the multitude is agitated in a democracy, or to those more serious and more constant in their nature, which prevail under an aristocracy. Hence arose their care either to direct or fetter them, and to proscribe whatever might become a detrimental shock to morals. Had the art of printing been known at that epoch, it is not likely that they would have suffered indiscreet and daring writers to publish their pernicious paradoxes, in order to catch the attention of the people, and to inflame men incapable of thinking against those to whom the laws confided the cares of government and of the common weal. The Spartans banished from their territories a poet who praised the pleasures which they dispised, and would not suffer the addition to the lyre of a new string that would have rendered the sounds of it more tender and effeminate. The Romans regarded the Sybilline verses as sacred books, to be consulted under the most trying circumstances; but, they intrusted them to the care of particular magistrates, and were sensible that it would prove dangerous to leave them in the hands of a populace unable to fathom the depth and meaning of their contents, and properly to fit them to the maxims of the republic* .
I think that I should place the importance of my observation in the most convincing point of view, by intreating you to recollect how very inconsiderable is the number of individuals who are capable of thinking by themselves, and of discussing an opinion. The remainder forms a mass of children, without a single idea of their own, unaffected by any absurdity whatsoever, and receiving only such succors for the understanding as are the casual result of memory. If government be instituted in order to direct and give the lead to a kind of thinking amongst mankind, as fathers of families are appointed to guide their children, whose reasoning powers are not yet developed, it seems to follow that this government, neglecting properly to manage the extremely moderate, common and infantine reason of the majority of the citizens, would not become either less imprudent or less guilty than the father of a family who should have failed to caution his children against those dangerous opinions which might lead astray their reason, not yet beyond its dawn, and too feeble to distinguish truth, and escape from the seductions of paradoxes and of falsehoods.
If, in America as in Europe, sophists, or ill-disposed declaimers, attack those truths which are the corner stones both of morality and politics; if prejudiced and selfish men will sacrifice the first principles of society to all their private interests; if the most immoral writers persuade the citizens to throw off all fear, shame, remorse and honor; and if others deal out, with equal indiscrimination, either illusions or truths, why should the passions, less hardened and audacious in America than in Europe, produce in the former effects less fatal? Observe what passes in our world! Thanks to the writers of books for the purpose of giving charms to vice! The morals have broken loose from every rule; they have enfeebled, or, rather, they have destroyed the empire of the laws: the governments are unhinged from them; and politics, without the succors of morality, continue wondering as chance directs, and only quit one error to embrace another!
I could wish, therefore, that every writer were obliged to put his name to his work; and should he offend against morals, the majesty of the laws and the respect due to those invested with the executive power, then let him become subject to their animadversions. Should he strive to hide himself under a fictitious name, what reason ought to prevent his undergoing a severer punishment; since even the concealment is a proof that he knew the mischief wherein he was engaged, and had not innocently fallen into mistakes? It would prove an act of justice if, during some years, he were to remain deprived of all the rights of citizens, at elections.
Notwithstanding that through the whole course of this letter I have only pointed out to you the power of morals, the necessity of keeping them properly corrected, and of preventing their declension, if it be your object to possess a pure government and salutary laws* , I acknowledge that my remarks are but the rough drafts of this important matter. Should the persons now placed at the head of affairs in America desire to see the subject much more elucidated, let them read the excellent work of which Doctor Brown published a third edition, in the year 1757, under the title of “An Estimate of the Manners and Principles of the Times.” I am not acquainted with any book in which the science of politics is more thoroughly and skilfully investigated. The author, according to the manner of the antients, considers, during a present moment, the future time, of which he announces the occurrences. This work became at once exceedingly successful in England: the minds of the nation were scared by the truths which he had placed before them; but, corruption had already made so great a progress, that they could not awaken themselves into a resolution of amendment; and, therefore, they continued sleeping in the very midst of all their vices. The war of 1756, notwithstanding, covered the English with glory; they conquered on every ocean; in all quarters, the progress of their arms was brilliantly successful; and then it was that the people ridiculed the fears of Doctor Brown. To avoid disquieting themselves, they were unwilling to observe that so much prosperity was the work of a man of genius, who suspended, as it were, the fall of the country, by upholding and even multiplying the causes of its ruin* . This ephemeron kind of glory has disappeared: the Americans have experienced that their enemies began to sink under the weight of their inordinate ambition, and that the manners censured by Doctor Brown forced them to expose the closing limits of their strength and of their power; but in particular, of that national and patriotic pride which yet served to counterbalance the vices of the country. Unless I much mistake, the legislators of America may reap from the work of Doctor Brown the most useful instructions, provided that they adopt his principles and his method.
Give me leave, Sir! previous to the conclusion of this long letter, to examine some articles of the American constitutions which do not, in my opinion, appear to have concerted any preventions for the abuses which threaten to invade you. For instance, do you approve of that law which enacts that the judges of the supreme court of judicature shall preserve their places so long as they behave well* ? At the first glance, this regulation appears founded in wisdom: yet, these are my objections. I should apprehend that individuals aspiring to these offices of magistracy, conceiving that their hopes were too distant from any prospect of completion, might, in order to obtain their point with more celerity, call in the arts and practices of intrigue. They might lay snares in order to entrap the judge whose post they were ambitious of securing for themselves. They might raise up against him secret enemies; for, to what perfidious artifice is the ambition of an intriguing man not capable of proceeding? Should the magistrate thus attacked, oppose only his probity to these envious persecutors, and sink under the contest, all is lost: and soon, his successors, convinced that, upon these occasions, the aids of virtue are too feeble, will oppose only intrigue to intrigue. They will strive, by every studied mark of complaisance, to gain friends and powerful protectors; justice will no longer hold an equal balance: and yet, no circumstance can prove more fatal to public morals than the corrupt practices of magistrates during the administration of justice. Then, do the laws lose all their credit; for, means are easily discovered to elude them under the pretence of making them more just.
My fears, or, rather, my zeal, for your interests, may, probably, exaggerate these dangers. I will, therefore, grant that the spirit of intrigue, so common in Europe, may never reach America. And, hence, what follows? The first magistrates will prove, at the commencement, exceedingly attentive to their duty. Not one will become displaced; and such a preservation of posts until the death of the possessors will, by degrees, render it customary to think that they are granted for their lives. The successors of these admirable men, becoming flattered by an opinion which favours their vanity, will adopt it with the utmost eagerness. Then the evil begins; then, these upright magistrates relax from the firm rectitude of their conduct, grow negligent and less attentive to themselves. At first, slight faults will meet a pardon, because a removal, until that period unknown, will appear too harsh a punishment. Crimes will then increase; to these, delinquents will become habituated; and, from their sanctioned faults, the judges will arrogate to themselves a kind of privilege or right to continue in their misbehavior. This is not, by any means, a vague and frivolous prediction; for, the men of the law, more circumspect than others, proceed by slow and gradual degrees; nor will the republic become so sufficiently fortunate as, in consequence of one flagrant act of injustice from this body, to feel and yield to the necessity of watching over its own interests, and of applying remedies to abuses.
Having adverted to the courts of justice, may I beg leave to introduce a word concerning the courts of equity? This establishment might have proved useful in England, during its subjection to the polity of the fiefs, and when the laws were unavoidably equivocal, rude and undigested. What, during such a period, was the least bad might pass for good. But, America remains no longer under the same circumstances. I should much like to have the judges follow the letter of the law. If it appear to them, in certain cases, either obscure or unjust, instead of erecting themselves into legislators, let them consult the legislative power. I dread lest the courts of equity, under the pretence of deciding according to the letter of the law, should corrupt it, and, by imparting to it an arbitrary disposition, pervert its nature. My apprehensions appear to rest upon a stronger ground when I reflect (nor do I think myself mistaken) that, amongst all the nations of Europe, the civilians have availed themselves of their abilities solely for the purpose of rendering the meaning of the law obscure and indecisive. To this are they indebted for their consequence: and we, indeed, should stand much less in need of them if they did not conduct us through the dark windings of a labyrinth. I must again repeat: if any law should prove equivocal, or seem too rigid and hostile to the rules and dictates of humanity, it then becomes necessary to recur to the legislative power; which alone enjoys the right of introducing its own amendments; and it is a point of high concern to the security and quiet of the citizens, that no court of justice should, at its own discretion, assume a jurisprudence which may easily degenerate into intolerable tyranny; because it will quickly become obedient to all the passions of the judges.
You must forgive my freedom, when I declare that, in these American constitutions are several laws which it is impossible to avoid approving and condemning, at the same moment. For instance: the republic of Massachusets enacts that “as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature;” and next adds that “the military power shall always be held in exact subordination to the civil authority and be governed by it* ”. This law clearly and excellently points out, but does not prevent, the danger. Wherefore has it referred only to the times of peace† ? Is it because, during a state of war, armies are less disposed to remain under a subjection to the civil power? Persons endued even with considerable understanding would feel a difficulty in assenting to this paradox. And, indeed, too often do we read, from history, of generals who have inspired their troops with some portion of their own ambition. The end of this law is vague and mutilated. The question is not that the army ought to continue in subordination to the civil power; for, such a truth is trivial; and it behoves the legislator to employ all possible means and measures, in order that this subordination, being once established, may exist, secure from every derangement. What numerous precautions are necessary in a free state, for the purpose of making good soldiers, yet never venturing to turn their power to unbecoming uses! These points neglected, the times will reproduce a Sylla, a Marius, a Cæsar, a Cromwell, or a Valstein.
In the constitution of the state of New York “it is enacted that the militia, at all times thereafter, as well in peace as in war, shall be armed and disciplined and in readinessfor service* .” It is easy to perceive how many attainments this law has still left for us to desire. The constitution of Pennsylvania directs that “the freemen of this commonwealth and their sons shall be trained and armed for its defence, under such regulations, restrictions and exceptions as the general assembly shall by law direct, preserving always to the people the right of chusing their colonel, and all commissioned officers under that rank, in such manner and as often as by the said laws shall be directed* .” This disposition has the same defect with which I have reproached New York. It seems as if the legislator saw only the end in view, without looking to the means by which he should attain to it. In vain have I explored the legislation of your republics, if, still, I prove incapable to discover in them those relations which unite the interests and the wills of citizens. I do not there perceive that harmony which holds all the parts of the state within a kind of equilibrium, and gives to them the same spirit.
You must expect that your people, of whom the laws have so clearly established the sovereignty, may prove difficult to manage, because they will perceive and feel their power. Armed in the defence of their country, they will become jealous of their dignity; they will grow disquieted and suspicious when they observe citizens (although not their superiors by any legislative rights) pluming themselves too much upon their fortune to mix amongst them, and putting on affected airs of merited pre-eminence. This is an incurable disease in all free states where riches are unequally divided. Should this leaven of envy, of jealousy and of ambition become inactive, it must follow, as an infallible sign, that the sentiment of liberty, enfeebled and almost destroyed, cannot subsist for any length of time. But, if it ferments with too much force, the republic will experience those shocks and violent commotions which, necessarily, must drive it to destruction. What, therefore, is the regimen the most suitable to such a temperament? It must arise (if I mistake not) from conciliatory laws which, without proceeding to the least infringement upon the rights and privileges of the poor, will prevent the rich from perverting to unwarrantable and dangerous uses those passions with which their affluence may have inspired them. To the mediocrity of their fortune are the people indebted for that kind of moderation from which they do not deviate, unless irritated by disdain, or by the violence of injustice. On the contrary, riches infect the possessors with a degree of vanity which, in proportion as it proves the most foolish is the most imperious. Resolved to exercise some authority, it grows accustomed to consider its hopes as actual rights. Why, therefore, following the example of Georgia, the constitution of which forbids estates to be entailed* , do not the other united commonwealths introduce the same proscriptions† ? Why do not the laws extend to a division of those fortunes which the avarice of the rich incessantly accumulates? Why, regarding and describing luxury as contemptible, are not means, also, devised for taking away from the thirst after the fruition of this luxury that nourishment which, more than replenishing, will render it insatiable? Had the American constitutions been established upon these principles, I should, with pleasure, have perceived that they were not ignorant of the danger to which your republics are exposed, and that they, at least, had struggled to establish, within the state, a bond of peace and concord, and to secure and strengthen the foundations of their liberties.
I, frequently, reflect, with pleasure, upon the situation of the Swiss cantons. Some of these possess, in common, little provinces, of which they are the sovereigns. All have unequal powers; different laws; religions, in every other quarter, hostile to each other; and yet, in this happy country, neither giving nor receiving the least occasion of offence. They are united amongst themselves by ties less powerful and less regular than those which associate the thirteen states of America; nevertheless, they are in the full enjoyment of a degree of order and tranquillity which, probably, these last may, indeed, desire, but not obtain. This country has never experienced troubles, except at some periods; and even then they terminated without leaving, as melancholy memorials of their existence, the seeds of hatred, of envy, or of ambition. Why, under the democracy of some cantons, do we not perceive any of those caprices, those flights of extravagancy, which are amongst its natural appendages? Wherefore, for instance, is an aristocracy, by nature, no more, within the canton of Bern, than a paternal government? And why do all its magistrates consider themselves as the agents, and not the masters of society* ?
The more deeply you probe into the causes of this happy administration, the more firmly will you become persuaded that it is the work of that silence to which the natives of Switzerland have condemned the most natural passions of the human heart. Carefully have they driven to a distance those temptations which might induce magistrates to prove guilty of ambition and injustice. Therefore, do the people, inspired with confidence, and perfectly secure, revere and love the laws on which they place a full dependance. Their country is dear to them; and they perceive, without concern and without disquiet, those negligences or little wrongs which are inseparable consequences of the frailty of human nature. They inhabit a poor territory, which preserves them from all the impertinent wants that afflict society, and debase nations remarkable for their opulence. The foreign service in which they are engaged at once produces two advantages: the one is, that, in despite of that peace which they love and which they enjoy, they are formed into good soldiers; and the other is, that it frees the country from those bad subjects who cannot rest contented with the simplicity of Helvetic manners* .
These reflections have naturally excited my astonishment to find that the United States of America, possessing fertile lands, and enjoying a situation the most favorable to the introduction and progress of an affluent commerce, should not have foreseen how soon they must become exposed to all those abuses which unavoidably attend extreme riches. Therefore, should their legislators consider that their republics could not, without difficulty, attain to those manners for which liberty so naturally calls. Standing in this predicament, they should not rest contented with vaguely recommending the practice of some virtues, but carry their duty still farther, and neglect no means whatever to render these virtues endearing and familiar.
To this point we must, certainly, agree: the Americans have established their independence, under a train of most unfortunate occurrences. Those times are past during which powerful, elevated and daring minds were at once capable of perpetrating the most violent injustice, and of soaring to the sublimest points of virtue. The Swiss, too poor to become infected by the vices of the present age, and united even by their poverty, rose against those lords whose impositions and whose cruelties at length harrassed and wore out their patience; nor could they, in their enterprise, have proposed to themselves any other attainments except liberty and glory; for, all the rest was totally beyond their knowledge. On the contrary, your colonies, already spoilt by their relationships and affinities to the mother-country, look with an eye of equal envy upon her opulence and her freedom; and it is for this reason (as I already have had the honor to inform you) that I could have wished that a long and toilsome war had substituted new passions and new ideas in the place of those which you have received from Europe.
I now return to the people of Switzerland; and the more I examine their confederation, the more am I persuaded that they owe the perpetuity of their manners, and of their equality, to that happy institution which holds them together without any fortified town, any military place where they must maintain garrisons, or in other words, mercenary soldiers, who are but soldiers, and never more at ease, and in their element, than when they can intimidate the quiet citizens, and make them feel their fancied superiority. And thus it happens that the magistrates, unable to have recourse to troops, of whom they might dispose at pleasure, become habituated, even in despite of themselves, to the pursuits of conciliation and of justice. They are more measured and cautious in their undertakings, because their imagination, not feasting itself upon daring projects, resists with ease the impulse of fallacious hopes. With fortresses and with mercenary garrisons, the magistrates would have felt themselves in the possession of such a power as must have rendered them more confident, and, of course, less prudent and more unjust. Under the pretext of defending the entrances into the country, they would have multiplied their fortresses; and, at the same time, magistrates more covetous and more ambitious would not have failed to seduce the citizens into a forgetfulness of their military spirit, by pretending to favor their passion for repose, and the pursuits of agriculture.
What would have become of these little cantons, where, under the protection of sound and serviceable morals, the most free and the most intire democracy still prevails? As in those ages which reflected the highest honor upon humanity, would the citizens have still continued to assemble under some old oak, some ancient fir-tree, there to deliberate, with all sincerity of heart, upon the subject of the public welfare? Long is it since those cantons, where democracy is, at this æra, attempered by the laws and customs of a judicious aristocracy, have paid obedience to aristocratics: that is, to tyrants. Even Berne, of which the aristocracy has none of the defects that appertain, in some degree, to this kind of government, would not have failed, by enslaving its own citizens, to draw down to ruin the Helvetic confederation. The ambition and avarice of this republic would have sought only for means to prostitute its powers. Even Berne would have enslaved its allies; allies whose rights and connections, at this period, it so religiously respects* .
You, doubtless, will suggest to me, that all your republics have, on the borders of the sea, and at the mouths of the great rivers, towns and ports which it is necessary to keep fortified. I well know that, if you desire to remain your own masters, it is a point of great consequence that you should defend the entrance of your harbors by standing fortresses and garrisons. I even conceive that within your inland towns it will prove indispensably requisite to erect some towers of defence against the probable invasions of the savages. Keep, therefore, as a constant part of your military establishment, fortresses and garrisons; because your provinces are not naturally guarded, like Switzerland; but, do not suffer these places of security to remain under the discretionary power of the magistrates of the country in which they are constructed. This power they, certainly, would abuse; nor can I think, without dread, upon the conseqaiences.
I could, therefore, with that all these military powers were confided to the direction, and subject to the orders of the continental Congress. This body alone, pursuant to the form of your confederation, being invested with the privilege and right of treating with all foreign states, should, also, enjoy the power of signifying their commands to the troops destined to bear arms against them. These garrisons (to whom it should be forbidden to intermeddle, in the least, with civil matters, and who ought not to receive any orders or instructions, except from Congress) will never become an arm within the hands of magistrates; and thus, likewise, the civil power, having only, for its recourse, the means of gentleness and conciliation to calm the sometimes-agitated spirit of the citizens, will fall under the necessity of acting from a system of politics conformable to its situation. The citizens, for their part, having nothing to fear, will grow, at length, habituated to an obedient reverence for the laws; a reverence not arising from fear, but from affection. Hence would originate a general security. The rich, perhaps, would cease to make an ill use of their affluence; or, at least, they would proceed to this perversion with less precipitancy, and less vain-glorious parade. The people armed, as in Switzerland, and become, in the strictest sense of the expression, the power and strength of the state, would render themselves respected even in the very midst of their submission and their poverty. I should conceive that not one of your republics can have any thing to apprehend from the proposition which I am now making. Is it possible to suppose that the continental Congress could, at any future moment, abuse those powers which I am desirous of placing within their hands, and proceed to the usurpation of an authority which must prove fatal to the liberty of the United States? Is not this respectable body to consist of members who shall have passed through the different employments in their republics; who shall have contracted their morals, their manners and their customs; and who, shortly, must re-enter within the class of simple citizens? Even granting that they could venture upon the madness of engaging in a conspiracy, of what service would their fortresses, their citadels and their garrisons prove against the militia of your thirteen united republics* ?.
Passy, August 13th, 1783.
[* ] Constitution of Maffachusets; chap. 5. sect. 2. The encouragement of literature. . . . The whole passage, at once intitled to our attention and applause, runs thus: “Wisdom and knowledge, as well as virtue, diffused generally among the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of the legislators and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them, especially the university of Cambridge, public schools and grammar schools in the towns, to encourage private societies and public institutions, rewards and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, &c. &c.
[* ] The reader, having examined the whole passage to which this observation is a reference, will more clearly draw his own conclusions respecting the validity of the opinions of Abbè de Mably. (K.) “As the public good requires that the governor should not be under the undue influence of the members of the general court, by a dependence on them for his support—that he should, in all cases, act with freedom for the benefit of the public—that he should not have his attention necessarily diverted from that object to his private concerns—and that he should maintain the dignity of the commonwealth in the character of its chief magistrate—it is necessary that he should have an honorable stated salary, of a fixed and permanent value, amply sufficient for those purposes, and established by standing laws: and it shall be among the first acts of the general court, after the commencement of this constitution, to establish such salary by law, accordingly.”Constitution of Massachusets; part 2. chap. 2. sect. 1. art. 13.
[* ] In England, where the most important dignities are (perhaps, too generally) conserred upon the chiefs of great and opulent families, the powerful heads of parties, and men of large landed property and extensive interest, the people would, in such cases, rejoice to see the abolition, or, rather (for, voluntary public virtue may claim and must receive the blessings of the multitude!) the patriotic and spontaneous refusal of all salary whatsoever. But, a commonwealth should draw out valuable integrity and excentric talents from the humble, and even the poor, obscurity of their situation, providing for them such compensations as (to borrow the language of the Americans) will support a line of action “with freedom for the benefit of the public.” The colonies may produce their Walsinghams and Andrew Marvels. Nor must such characters be permitted to remain either without employment or without salaries. K.
[* ] A frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry and frugality are absolutely necessary to preserve the blessings of liberty and keep a government free.Constitution of Pennsylvania; chap. 1. sect. 14.
[* ] Laws for the encouragement of virtue and prevention of vice and immorality shall be made and constantly kept in force; and provision shall be made for their due execution.Chap. 2. sect. 45.
[* ] “In order that the freedom of this commonwealth may be preserved inviolate for ever, there shall be chosen by ballot, by the freemen in each city and county respectively, on the second Tuesday in October, in the year one thousand seven hundred and eighty-three, and on the second Tuesday in October, in every seventh year thereafter, two persons in each city and county of this state, to be called the council of censors; who shall meet together on the second Monday in November, next ensuing their election; the majority of whom shall be a quorum in every case, except as to calling a convention, in which two thirds of the whole number elected shall agree; and whose duty it shall be to enquire whether the constitution has been preserved inviolate in every part? And whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution? They are also to enquire whether the public taxes have been justly laid and collected in all parts of this commonwealth, in what manner the public monies have been disposed of, and, whether the laws have been duly executed? For these purposes, they shall have power to send for persons, papers and records; they shall have authority to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution. These powers they shall continue to have, for and during the space of one year from the day of their election and no longer. The said council of censors shall also have power to call a convention to meet within two years after their sitting, if there appear to them an absolute necessity of amending any article of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people: but the articles to be amended, and the amendments proposed, and such articles as are proposed to be added or abolished, shall be promulgated at least fix months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.”Constitution of Pennsylvania; chap. 2. sect. 47.
[* ] The liberal and virtuous reader will exercise his own judgment upon the question (a question too important for a short discussion) whether Abbé de Mably, in this and the following pages, yielding to the dread with which he looks upon the evils which may, in his opinion, result from toleration, does not too rashly recommend a spirit of intolerance; that spirit, the horrid history of the progress of which should be written in letters of blood? K.
[* ] More incontestable than his arguments against toleration is the opinion of the Abbé de Mably, that the clergy should enjoy the right of voting at elections. K.
[† ] See the appendix.
[* ] Constitution of Pennsylvania; chap. 1. art. 2.
[* ] Perhaps, toleration may extinguish the spirit of controversy. Let the reader peruse the following liberal extracts, and judge for himself. K.
“And whereas we are required by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance, wherewith the bigotry and ambition of wicked priests and princes have scourged mankind: this convention doth farther, in the name and by the authority of the good people of this state, ordain, determine and declare, that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever hereafter be allowed in this state to all mankind. Provided that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.”Constitution of New York; art. 37.
“No authority can, or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul the right of conscience in the exercise of religious worship.”Constitution of Pennsylvania; chap. 1. art. 2.
“All men have a natural and unalienable right to worship ALMIGHTY GOD according to the dictates of their own consciences and understandings; and no authority can, or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul the right of conscience, in the free exercise of religious worship.”Fundamental Rules of the Delaware State; sect. 2.
“All men have a natural and unalienable right to worship ALMIGHTY GOD according to the dictates of their own conscience.”Constitution of North Carolina; art. 19.
The Constitutions of Massachusets, South Carolina, Georgia, contain clauses all dictated by the same discerning and charitable spirit.
[* ] See the appendix.
[* ] The advocates for the freedom of the press (and these compose a part of the most enlightened, spirited and virtuous of the human race) will, probably, think that too high a passion for intolerance has dictated the remarks in this, and some of the succeeding pages. K.
[* ] If it be amongst the prejudices of England to maintain inviolate the constitutional liberty of the press, the warm and (we, indeed, believe) sincere attachment of the Abbé de Mably to his friends, the Americans, should have induced him to reverse his wish, and hope, with more than usual fervor, that they would not, at any moment, break loose from this particular prejudice of England. It requires more than nice discernment; a liberal spirit, and a splendid impulse of enlightened magnanimity must co-operate to forge a chain (of law) which shall impede the movements of licentiousness, yet not admit one single link that could despotically bind the bold, correcting, virtuous career of freedom. To this, the genuine spirit of the English form of government is equal; and, if a love and reverence for such a spirit, together with an invincible determination to shield it (as it has been shielded) by force of arms, and at the price of life, from all tyrannical encroachments, deserve to be regarded as the prejudices of England, to these it is not possible that either the Americans, or any state upon the surface of the whole earth, can prove “too much familiarised.” Abbé de Mably is too accurately versed in the constitutional history of nations coolly and seriously to suppose that the laws of England do not place all proper restraints upon the press; restraints obvious to every enquirer; and, therefore, neither wanting nor admitting, during the short course of these natural remarks, the least enumeration. Such salutary restraints (which do not wound the trunk; nor branch; nor ’twig; nor even hurt the leaf; but, only cut away the dangerous excrescence) demand, and actually receive the full obedience of our well-intentioned fellow-subjects. To these do we submit; and, perhaps, partly, in order to indulge, with less restraint, the necessary exercise of our freedom:
“Ideo, legibus servimus, ut liberi simus* .”
Abbé de Mably appears desirous to exclude from the press all, except “the learned who study the secrets of nature; who seek for truth amidst the shattered fragments of antiquity and the obscurity of modern times; and who write concerning the laws, the regulations, the decrees and the particular arrangements of the systems of politics and of administration.” May not the executive servants of the state, and numberless individuals, enjoying too large a share of power and of influence, at some particular period, display a marked propensity to violate the rights and privileges of their fellow-citizens? On such occasions, must no warning voice be lifted up, in time, to crush the evil at its outset? May not . . . . . .
But, it is needless to croud question upon question to prove the impolicy (too soft a term) of the recommended restrictions of our author upon the freedom of the press.
It seems extraordinary that the states of New York and New Jersey* should (unless I have overlooked the passage) maintain, in their new constitutions, a profound silence respecting this important subject. The other governments are extremely pointed on the occasion:
“The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in a commonwealth.”Constitution of Massachusets; part 1. art. 16.
“The people have a right to freedom of speech, and of writing and publishing their sentiments; therefore, the freedom of the press ought not to be restrained.”Constitution of Pennsylvania; chap. 1. sect. 12.
“The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.”Constitution of Pennsylvania; chap. 2. sect. 35.
“The liberty of the press ought to be inviolably preserved.”Constitution of Delaware. Declaration 23.
“The liberty of the press ought to be inviolably preserved.”Constitution of Maryland; sect. 38.
“The freedom of the press is one of the great bulwarks of liberty, and, therefore, ought not to be restrained.”Constitution of North Carolina; sect. 15.
“That the liberty of the press be inviolably preserved.”Constitution of South Carolina; sect. 43. K.
[* ] I have not seen the laws of the province of New Jersey, contained in the edition lately published by Mr. Allinson, which are to remain in full force, until altered by the legislature of the colony (such only excepted as are incompatible with its constitution) but, probably, one of these laws points to the preservation of the liberty of the press.
[* ] The Abbé de Mably may have imparted brilliancy (but non-strength) to his arguments against the liberty of the press, when pleading for the policy of restraining it, because the plebeians of Rome were not suffered to meddle with the Sybilline books! and because Timotheus was driven out of Sparta for putting a tenth chord to his lyre! K.
[* ] We must again declare (and, scarcely, without indignation) that restraints upon the freedom of the press cannot fall under any part of the description of “a pure government and salutay laws.” If either Abbé de Mably, or the political writers of any country, have already prepared, for the acceptance of the Americans, codes of laws which come violently home to this arbitrary point of prohibition, it is a friendly voice that exclaims to them:
“Time Danaos: et dona ferentes.!” K.
[* ] Such are the sentiments of Abbé de Mably! . . . . Doctor Brown (at once an object of pity and of admiration; the manners and the habits of whose life (and we will drop in friendly silence all mention of his untimely death) were not congenial with the sternly-reprobating spirit of his “Estimate”) remarked that the British nation “stood aghast at its own misfortunes; but, like a man starting suddenly from sleep, by the noise of some approaching ruin, know neither whence it came, nor how to avoid it. It was in answer to this Estimate that a Mr. Wallace drew up his “Characteristics of the political State of Great Britain* .” The favorable reception which they met with was like the thanks offered by the Romans, at a more alarming period, to their consul, “quod de republicâ non desperasset.” If we look back upon the national events which terminated the career of the last reign, and threw such lustre over the beginning of the present reign, we may at once discover in which of the mirrors presented to them, by Doctor Brown and Mr. Wallace, the people of England saw their own likeness. The work of the last author becomes scarce; but, it is not his chêf d’œuvre. For that, we may refer to his “System of the Laws of Scotland:” the offspring of deep thought and indefatigable labor; which must have fixed his reputation, although only the digressive parts of it had been attended to; and, amongst these parts, his charitable remarks concerning the servitude of our negroes. I cannot conclude this note without introducing an opposite quotation from a work† in which the author, although modestly appearing to aim no higher than the art of pleasing, in a simple narrative of curirious facts, steals imperceptibly upon the mind, and, by his observations, never leaves it worse, but often (we should hope) much better than he found it.
“In this celebrated Estimate we meet with great inequalities; amidst many bright thoughts and just observations, delivered in a very copious and animated stile, we shall find a great propensity to novelty and paradox. Did solidity of judgment keep pace with the rapidity of his fancy, we should do nothing but admire. His despair of the public, from his viewing the dark side of the question, and his misrepresenting of objects, sometimes throws him into the most gloomy and melancholy reflections. What can we say of the following postulatum?
“But, if, in any nation, the number of these superior minds be daily decreasing, from the growing manners of the times, what can a nation so circumstanced have more to fear, than that, in another age, a general cloud of ignorance may overshadow it?!!”
It has been remarked that Doctor Brown “had a soul full of gratitude;” and that “his honor and integrity were unquestioned by all who knew him.” For these uncommon virtues, we bury faults, and even vices, in oblivion. . . The panegyric is a laurel, over his grave, which will not wither. K.
[* ] The elegent and entertainingly-instructive author of the Biographia Dramatics observes that the “Estimate” was “run down by popular clamor, but not answered.” We will not dispute his assertion in the first point; but, may take the liberty of inferring that he appears mistaken in the second.
[† ] Life of Carrick, by Mr. Davies.
[* ] The validity of these remarks appears much lessened by the consideration that the judges are removable only upon conviction (of misbehavior) in a court of law.
The superior legislatorial talents of Abbé de Mably may frame edicts more unexceptionable than the following, which, if they do not operate as a refutation of his arguments, are, at least, proofs of the sound policy of the lawgivers from whom they have proceeded.
“The independency and uprightness of judges are essential to the impartial administration of justice; and a great security to the rights and liberties of the people; wherefore the chancellor and judges ought to hold commissions during good behaviour; and the said chancellor and judges shall be removed for misbehaviour, on conviction in a court of law; and may be removed by the governor upon the address of the general assembly, provided that two thirds of all the members of each house concur in such address.”Constitution of Maryland. Declaration of Rights; sect. 30.
“That the chancellor, all judges, the attorney general, clerks of the general court, the clerks of the county courts, the registers of the land office and the registers of wills shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a court of Law.”Form of Government of Maryland; sect. 40.
“The president and general assembly shall, by joint ballot, appoint three justices of the supreme court for the state, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans courts for each county, one of whom in each court shall be stiled chief justice, to be commissioned by the president under the great seal, who shall continue in office during good behaviour.”Delaware Declaration of Rights; sect. 12.
“The judges of the supreme court shall continue in office, for seven years; the judges of the inferior court of common pleas in the several counties, justices of the peace, clerks of the supreme court, clerks of the inferior court of common pleas and quarter sessions, the attorney-general and provincial secretary shall continue in office for five years; and the provincial treasurer shall continue in office for one year; and that they shall be severally appointed by the council and assembly in manner aforesaid, and commissioned by the governor, or, in his absence, the vice president of the council. Provided always that the said officers severally shall be capable of being re-appointed at the end of the terms severally before limited; and that any of the said officers shall be liable to be dismissed, when adjudged guilty of misbehaviour, by the council, on an impeachment of the assembly.”Constitution of New Jersey; sect. 12.
“The judges of the supreme court of judicature shall have fixed salaries, be commissioned for seven years only, though capable of re-appointment at the end of that term, but removable for misbehavior, at any time, by the general assembly.”Constitution of Pennsylvania; chap. 2. sect. 23.
The last three clauses, not absolutely securing to the judges their places during good behaviour, may afford a gleam of comfort to Abbè de Mably. K.
[* ] Constitution of Massachusets; part 1. chap. 17.
[† ] Abbé de Mably, though right in point of argument, appears to have set out upon a wrong principle. Surely, to declare that the military power shall always be holden in exact subordination to the civil authority and governed by it, is a provision equally and pointedly allusive to times of war and peace. And, strictly, in the same meaning, are the following clauses:
“The military should be kept under strict subordination to, and governed by the civil power.”Constitution of Pennsylvania; sect. 13.
“A well-regulated militia is the proper, natural and safe defence of a free government.”
“Standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the legislature.”
“In all cases, and at all times, the military ought to be under strict subordination to, and governed by, the civil power.”
“No soldier ought to be quartered in any house, in time of peace, without the consent of the owner; and, in time of war, in such manner only as the legislator shall direct.”Constitution of Delaware; sect. 19, 20, 21.
“In time of war, quarters (for soldiers) ought not to be made but by the civil magistrate, in a manner ordained by the legislator.”Constitution of Massachusets; part 1. art. 27.
Three clauses in the constitution of Maryland contain exactly the same words as the foregoing.
And almost literatim with these is another clause in the declaration of rights by the North Carolinians. Even a smaller quantity of plain and sterling sense would have proved sufficient to overthrow the paradox in question. K.
[* ] Constitution of New York; art. 40.
[* ] Constitution of Pennsylvania; chap. 2. sect. 5.
[* ] Estates shall not be entailed; and when a person dies intestate, his, or her estate shall be divided, according to the act of distribution, made in the reign of Charles the second, unless otherwise altered by any future act of the legislature.Constitution of Georgia; art. 51.
[† ] Abbé de Mably appears to have overlooked the following clause:
“The future legislature of this state shall regulate entails in such a manner as to prevent perpetuities.”Constitution of Pennsylvania; chap. 2. sect. 37.
[* ] The government of Switzerland has been expressively stiled by Mellarede, a minister of Savoy, “Confusio divinitus conservata:” and Chapelle (author of the letters from an Helvetian to a Frenchman) with equal felicity of description, applies to it the terms in which Horace mentions the universe: “Rerum concordia discors.” What, indeed (to borrow the idea of a discerning statesman) can prove more a paradox in politics, than thirteen republics, having different religions, different alliances, different maxims and different forms of government; thirteen republics which do not depend at all upon each other; and yet form but one body, of which the members are independent and without a chief: a body which has subjects and allies who are not those of the members; members having subjects and allies who are not those of the body? Such is this fantastical constitution, which has existed beyond the space of four centuries, without fortresses, and without standing armies. K.
[* ] That with a most barbarous insensibility concerning either the justice or the injustice of the cause, they have fought, as mercenaries (mercenaries to a proverb!) under the standard of foreign powers in a foul speck, which much obscures the brilliancy of all their public and all their private virtues. The term “carcase butchers,” howsoever coarse, is gentle in the scale of justice, when applicable to the German princes, who let their subjects out to any tyrants that have drawn the sword against their injured fellow creatures! . . . . And it behoves the Swiss to take especial care! for, most judiciously has the author of “La Science du Gouvernement” observed that one of the future principles of the destruction of the Helvetic body may be the influence preserved within it by those nations in whose service the people of Switzerland employ their troops. The subsidies which foreign princes pay to these cantons, and (what is infinitely more dangerous to a republic) the pensions which they either openly or secretly allow to many particular individuals, secures for them their suffrages in the deliberations of the Helvetic body. The unprincipled shares in such corrupting stipends direct (whensoever they have any authority in managing the affairs of government) the public councils as much as possible towards the end which those powers, who are their paymasters, have, chiefly, in their view. K.
[* ] It is, perhaps, needless to inform the historical reader that the canton of Berne had opened for itself an admission into America, under the auspices of the English, and obtained from the late king, in the year 1734, the liberty of sounding a city in Carolina; but this colony (to which the miserable adventurers were allured by the prospect of high advantages) became the grave of those Switzerlanders who chose it for their settlement. They all died of want. Had they lived, succeeded and flourished, Abbé de Mably might, probably, at this day, have observed one of his favorite constitutions, pouring down the sources of public happiness upon his favorite friends! K.
[* ] We apprehend (but, with submission to the political superiority of his judgment) that Abbé de Mably displays an inclination to invest the Congress with too large a share of power. Even when resident in the highest bodies, whether amidst republics, or under monarchies, a barrier should be fixed, beyond the scite of which it never ought to pass. Granting (and such lunatics are upon record!) that the Congress, thus more approximated to the omnipotence of a parliament, should become infected with the madness of engaging in a conspiracy against the rights and liberties of the people, the price of bringing them to their senses (by the militia of thirteen republics opposed in battle to their garrisons and armies!) is, probably, the horrible effusion of rivers of human blood! Better were it to avoid the risk. The general infirmities and vices of human nature can scarcely bring within the bounds of credibility the position that not a single member of a numerous national assembly would feel his patriotism give way to the seduction of any criminal ambition which might, with ease, be gratified. The remark is not totally unjustifiable, because, in this, and subsequent parts of the work, Abbé de Mably appears prodigal in his recommendations of an increase for the authority of the continental Congress. K.