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The Scottish born James Wilson (1742-1798) was an influential member of the Constitutional Convention and was one of the few men to have signed both the Declaration of Independence and the Constitution of the U.S. Unlike James Madison, who believed institutions played the most important role in defending liberty, Wilson drew upon his Scottish roots to argue that natural rights and legal processes were a better guarantee of our liberties.
Session I is on the Scottish Roots of Wilson’s theory of natural rights, in particular Frances Hutcheson’s A System of Moral Philosophy (1755) which unfortunately we not have online at this time. The following sections come from the Continuum International Edition:
For additional reading see:
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: CHAPTER II.: Of the General Principles of Law and Obligation.
Accessed from oll.libertyfund.org/title/2072/156457 on 2008-08-21
The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.
Order, proportion, and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made.
On the inanimate part of the creation, are impressed the continued energies of motion and of attraction, and other energies, varied and yet uniform, all designated and ascertained. Animated nature is under a government suited to every genus, to every species, and to every individual, of which it consists. Man, the nexus utriusque mundi,1 composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected. The celestial as well as the terrestrial world knows its exalted but prescribed course. This angels and the spirits of the just, made perfect, do “clearly behold, and without any swerving observe.” Let humble reverence attend us as we proceed. The great and incomprehensible Author, and Preserver, and Ruler of all things—he himself works not without an eternal decree.
Such—and so universal is law. “Her seat,” to use the sublime language of the excellent Hooker,t2 “is the bosom of God; her voice, the harmony of the world; all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power. Angels and men, creatures of every condition, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.”
Before we descend to the consideration of the several kinds and parts of this science, so dignified and so diversified, it will be proper, and it will be useful, to contemplate it in one general and comprehensive view; and to select some of its leading and luminous properties, which will serve to guide and enlighten us in that long and arduous journey, which we now undertake.
It may, perhaps, be expected, that I should begin with a regular definition of law. I am not insensible of the use, but, at the same time, I am not insensible of the abuse of definitions. In their very nature, they are not calculated to extend the acquisition of knowledge, though they may be well fitted to ascertain and guard the limits of that knowledge, which is already acquired. By definitions, if made with accuracy—and consummate accuracy ought to be their indispensable characteristick—ambiguities in expression, and different meanings of the same term, the most plentiful sources of errour and of fallacy in the reasoning art, may be prevented; or, if that cannot be done, may be detected. But, on the other hand, they may be carried too far, and, unless restrained by the severest discipline, they may produce much confusion and mischief in the very stations, which they are placed to defend.
You have heard much of the celebrated distribution of things into genera and species. On that distribution, Aristotle undertook the arduous task of resolving all reasoning into its primary elements; and he erected, or thought he erected, on a single axiom, a larger system of abstract truths, than were before invented or perfected by any other philosopher. The axiom, from which he sets out, and in which the whole terminates, is, that whatever is predicated of a genus, may be predicated of every species contained under that genus, and of every individual contained under every such species.u On that distribution likewise, the very essence of scientifick definition depends: for a definition, strictly and logically regular, “must express the genus of the thing defined, and the specifick difference, by which that thing is distinguished from every other species belonging to that genus.”v
From this definition of a definition—if I may be pardoned for the apparent play upon the word—it evidently appears that nothing can be defined, which does not denote a species; because that only, which denotes a species, can have a specifick difference.
But further: a specifick difference may, in fact, exist; and yet language may furnish us with no words to express it. Blue is a species of colour; but how shall we express the specifick difference, by which blue is distinguished from green?
Again: expressions, which signify things simple, and void of all composition, are, from the very force of the terms, unsusceptible of definition. It was one of the capital defects of Aristotle’s philosophy, that he attempted and pretended to define the simplest things.
Here it may be worth while to note a difference between our own abstract notions, and objects of nature. The former are the productions of our own minds; we can therefore define and divide them, and distinctly designate their limits. But the latter run so much into one another, and their essences, which discriminate them, are so subtile and latent, that it is always difficult often impossible, to define or divide them with the necessary precision. We are in danger of circumscribing nature within the bounds of our own notions, formed, frequently, on a partial or defective view of the object before us. Fettered thus at our outset, we are restrained in our progress, and govern the course of our inquiries, not by the extent or variety of our subject, but by our own preconceived apprehensions concerning it.
This distinction between the objects of nature and our own abstract notions suggests a practical inference. Definitions and divisions in municipal law, the creature of man, may be more useful, because more adequate and more correct, than in natural objects.
By some philosophers, definition and division are considered as the two great nerves of science. But unless they are marked by the purest precision, the fullest comprehension, and the most chastised justness of thought, they will perplex, instead of unfolding—they will darken, instead of illustrating, what is meant to be divided or defined. A defect or inaccuracy, much more an impropriety, in a definition or division, more especially of a first principle, will spread confusion, distraction, and contradictions over the remotest parts of the most extended system.
Errours in science, as well as in life, proceed more frequently from wrong principles, than from ill drawn consequences. Prava regula prima3 may be the parent of the most fatal enormities.
The higher an edifice is raised, the more compactly it is built, the more precisely it is carried up in a just direction—in proportion to all these excellencies, a rent in the foundation will increase and become dangerous.
The case is the same with a radical errour at the foundation of a system. The more accurately and the more ingeniously men reason, and the farther they pursue their reasonings, from false principles, the more numerous and the more inveterate will their inconsistencies, nay, their absurdities be. One advantage, however, will result—those absurdities and those inconsistencies will be more easily traced to their proper source. When the string of a musical instrument has a fault only in one place, you know immediately how and where to find and correct it.
Influenced by these admonitory truths, I hesitate, at present, to give a definition of law. My hesitation is increased by the fate of the far greatest number of those, who have hitherto attempted it. Many, as it is natural to suppose, and laboured have been the efforts to infold law within this scientifick circle; but little satisfaction—little instruction has been the result. Almost every writer, sensible of the defects, the inaccuracies, or the improprieties of the definitions that have gone before him, has endeavoured to supply their place with something, in his own opinion, more proper, more accurate, and more complete. He has been treated by his successours, as his predecessors have been treated by him: and his definition has had only the effect of adding one more to the lengthy languid list. This I know, because I have taken the trouble to read them in great numbers; but because I have taken the trouble to read them, I will spare you the trouble of hearing them—at least, the greatest part of them.
Some of them, indeed, have a claim to attention: one, in particular, will demand it, for reasons striking and powerful—I mean that given by the Commentator on the laws of England.
Let us proceed carefully, patiently, and minutely to examine it. If I am not deceived, the examination will richly compensate all the time, and trouble, and investigation, that will be allotted to it; for it will be uncommonly fruitful in the principles, and in the consequences of the great truths and important disquisitions, which it will lead in review before us.
“Law,” says he, “in its most general and comprehensive sense, signifies a rule of action.”w In its proper signification, a rule is an instrument; by which a right line—the shortest and truest of all—may be drawn from one point to another. In its moral or figurative sense, it denotes a principle or power, that directs a man surely and concisely to attain the end, which he proposes.
Law is called a rule, in order to distinguish it from ax sudden, a transient, or a particular order: uniformity, permanency, stability, characterize a law.
Again; law is called a rule, to denote that it carries along with it a power and principle of obligation. Concerning the nature and the cause of obligation, much ingenious disputation has been held by philosophers and writers on jurisprudence. Indeed the sentiments entertained concerning it have been so various, that an account of them would, in the estimation of my Lord Kaims, be a “delicate historical morsel.”
This interesting subject will claim and obtain our attention, next after what we have to say concerning law in general.
When we speak of a rule with regard to human conduct, we imply two things. 1. That we are susceptible of direction. 2. That, in our conduct, we propose an end. The brute creation act not from design. They eat, they drink, they retreat from the inclemencies of the weather, without considering what their actions will ultimately produce. But we have faculties, which enable us to trace the connexion between actions and their effects; and our actions are nothing else but the steps which we take, or the means which we employ, to carry into execution the effects which we intend.
Hooker, I think, conveys a fuller and stronger conception of law, when he tells us, that “it assigns unto each thing the kind, that it moderates the force and power, that it appoints the form and measure of working.”y Not the direction merely, but the kind also, the energy; and the proportion of actions is suggested in this description.
Some are of opinion, that law should be definedz “a rule of acting or not acting;” because actions may be forbidden as well as commanded. But the same excellent writer, whom I have just now cited, gives a very proper answer to this opinion, and shows the addition to be unnecessary, by finely pursuing the metaphor, which we have already mentioned. “We must not suppose that there needeth one rule to know the good, and another to know the evil by. For he that knoweth what is straight, doth even thereby discern what is crooked. Goodness in actions is like unto straightness; wherefore that which is well done, we term right.”a
After this dry description of the literal and metaphorical meaning of a rule, permit me to relax your strained attention by a critical remark. In the philosophy of the human mind, it is impossible altogether to avoid metaphorical expressions. Our first and most familiar notions are suggested by material objects; and we cannot speak intelligibly of those that are immaterial, without continual allusions to matter and the qualities of matter.
Besides, in teaching moral science, the use of metaphors is not only necessary, but, if prudent, and honest, and guarded, it is highly advantageous. Nature has endowed us with the faculty of imagination, that we may be enabled to throw warming as well as enlightening rays upon truth—to embellish, to recommend, and to enforce it. Truth may, indeed, by reasoning, be rendered evident to the understanding; but it cannot reach the heart, unless by means of the imagination. To the imagination metaphors are addressed.
From this short excursion into the field of criticism, let us return to our legal tract. Law is a rule “prescribed.” A simple resolution, confined within the bosom of the legislator, without being notified, in some fit manner, to those for whose conduct it is to form a rule, can never, with propriety, be termed a law.
There are many ways by which laws may be made sufficiently known. They may be printed and published. Written copies of them may be deposited in publick libraries, or other places, where every one interested may have an opportunity of perusing them. They may be proclaimed in general meetings of the people. The knowledge of them may be disseminated by long and universal practice. “Confirmed custom,” says a writer on Roman jurisprudence, “is deservedly considered as a law. For since written laws bind us for no other reason than because they are received by the judgment of the people; those laws, which the people have approved, without writing, are also justly obligatory on all. For where is the difference, whether the people declare their will by their suffrage, or by their conduct? This kind of law is said to be established byb manners.”c
Of all yet suggested, the mode for the promulgation of human laws by custom seems the most significant, and the most effectual. It involves in it internal evidence, of the strongest kind, that the law has been introduced by common consent; and that this consent rests upon the most solid basis—experience as well as opinion. This mode of promulgation points to the strongest characteristick of liberty, as well as of law. For a consent thus practically given, must have been given in the freest and most unbiassed manner.
With pleasure you anticipate the prospect of a species of law, to which these remarks have already directed your attention. If it were asked—and it would be no improper question—who of all the makers and teachers of law have formed and drawn after them the most, the best, and the most willing disciples; it might be not untruly answered—custom.
Laws may be promulgated by reason and conscience, the divine monitors within us. They are thus known as effectually, as by words or by writing: indeed they are thus known in a manner more noble and exalted. For, in this manner, they may be said to be engraven by God on the hearts of men: in this manner, he is the promulgator as well as the author of natural law.
If a simple resolution cannot have the force of a law before it be promulgated; we may certainly hazard the position—that it cannot have the force of a law, before it be made: in other words, that ex post facto instruments, claiming the title and character of laws, are impostors.
Peculiarly striking, upon, this subject, are the sentiments of the criminal and unfortunate Strafford.4 I call him criminal, because he acted; I call him unfortunate, because he suffered, against the laws of his country. His sentiments must make a deep impression upon others: because, when he spoke them, he must have been deeply impressed with them himself. When he spoke them, he stood under a bill of attainder, suspended only by the slender thread of political justice, and ready, like the sword of Damocles,5 to fall on his devoted head. “Do we not live by laws? And must we be punished by laws before they are made? Far better were it to live by no laws at all, than to put this necessity of divination upon a man, and to accuse him of the breach of a law, before it be a law at all.”d
In criminal jurisprudence, a Janus statute,6 with one face looking backward, and another looking forward, is a monster indeed.
The definition of law in the Commentaries proceeds in this manner. “Law is that rule of action, which is prescribed by some superiour, and which the inferiour is bound to obey.” A superiour! Let us make a solemn pause—Can there be no law without a superiour? Is it essential to law, that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?
There is a law, indeed, which flows from the Supreme of being—a law, more distinguished by the goodness, than by the power of its allgracious Author. But there are laws also that are human; and does it follow, that, in these, a character of superiority is inseparably attached to him, who makes them; and that a character of inferiority is, in the same manner, inseparably attached to him, for whom they are made? What is this superiority? Who is this superiour? By whom is he constituted? Whence is his superiority derived? Does it flow from a source that is human? Or does it flow from a source that is divine?
From a human source it cannot flow; for no stream issuing from thence can rise higher than the fountain.
If the prince, who makes laws for a people, is superiour, in the terms of the definition, to the people, who are to obey; how comes he to be vested with the superiority over them?
If I mistake not, this notion of superiority, which is introduced as an essential part in the definition of a law—for we are told that a law alwayse supposes some superiour, who is to make it—this notion of superiority contains the germ of the divine right—a prerogative impiously attempted to be established—of princes, arbitrarily to rule; and of the corresponding obligation—a servitude tyrannically attempted to be imposed—on the people, implicitly to obey.
Despotism, by an artful use of “superiority” in politicks; and scepticism, by an artful use of “ideas” in metaphysicks, have endeavoured—and their endeavours have frequently been attended with too much success—to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains. But those destroyers of others have met, or must meet, with their own destruction.
We now see, how necessary it is to lay the foundations of knowledge deep and solid. If we wish to build upon the foundations laid by another, we see how necessary it is cautiously and minutely to examine them. If they are unsound, we see how necessary it is to remove them, however venerable they may have become by reputation; whatever regard may have been diffused over them by those who laid them, by those who built on them, and by those who have supported them.
But was Sir William Blackstone a votary of despotick power? I am far from asserting that he was. I am equally far from believing that Mr. Locke was a friend to infidelity. But yet it is unquestionable, that the writings of Mr. Locke have facilitated the progress, and have given strength to the effects of scepticism.
The high reputation, which he deservedly acquired for his enlightened attachment to the mild and tolerating doctrines of christianity, secured to him the esteem and confidence of those, who were its friends. The same high and deserved reputation inspired others of very different views and characters, with a design to avail themselves of its splendour, and, by that means, to diffuse a fascinating kind of lustre over their own tenets of a dark and sable hue. The consequence has been, that the writings of Mr. Locke, one of the most able, most sincere, and most amiable assertors of christianity and true philosophy, have been perverted to purposes, which he would have deprecated and prevented, had he discovered or foreseen them.
Berkeley, the celebrated bishop of Cloyne,7 wrote his Principles of human Knowledge—a book intended to disprove the existence of matter—with the express view of banishing scepticism both from science and from religion. He was even sanguine in his expectations of success. But the event has proved that he was egregiously mistaken; for it is evident, from the use to which later authors have applied it, that his system leads directly to universal scepticism.
Similar, though in an inferiour degree, have been, and may be, the fate and the influence of the writings and character of Sir William Blackstone; even admitting that he was as much a friend to liberty, as Locke and Berkeley were friends to religion.
But in prosecuting the study of law on liberal principles and with generous views, our business is much less with the character of the Commentaries or of their author, than with the doctrines which they contain. If the doctrines, insinuated in the definition of law, can be supported on the principles of reason and science; the defence of other principles, which I have thought to be those of liberty and just government, becomes—I am sorry to say it—a fruitless attempt.
Sir William Blackstone, however, was not the first, nor has he been the last, who has defined law upon the same principles, or upon principles similar and equally dangerous.
This subject is of such radical importance, that it will be well worth while to trace it as far as our materials can carry us; for errour as well as truth should be examined historically, and pursued back to its original springs.
By comparing what is said in the Commentaries on this subject, with what is mentioned concerning it in the system of morality, jurisprudence, and politicks written by Baron Puffendorff, we shall be satisfied that, from the sentiments and opinions delivered in the last mentioned performance, those in the first mentioned one have been taken and adopted. “A law,” says Puffendorff, “is the command of a superiour.”f “A law,” says Sir William Blackstone, “always supposes some superiour, who is to make it.”g
The introduction of superiority, as a necessary part of the definition of law, is traced from Sir William Blackstone to Puffendorff. This definition of Puffendorff is substantially the same with that of Hobbes.8 “A law is the command of him or them, that have the sovereign power, given to those that be his or their subjects.”h It is substantially the same also with that of Bishop Saunderson.9 “Law is a rule of action, imposed on a subject, by one who has power over him.”i
Let us now inquire what is meant by superiority, that we may be able to ascertain and recognise those qualities, inherent or derivative, which entitle the superiour or sovereign to the transcendent power of imposing laws.
We can distinguish two kinds of superiority. 1. A superiority merely of power. 2. A superiority of power, accompanied with a right to exercise that power. Is the first sufficient to entitle its possessor to the character and office of a legislator? If we subscribe to the doctrines of Mr. Hobbes, we shall say, that it is. “To those,” says he, “whose power is irresistible, the dominion of all men adhereth naturally, by their excellence of power.”k
This position, strange as it is, has had its advocates in ancient as well as in modern times. Even the accomplished Athenians, who excluded it from their municipal code, seem to have considered it as part of the received law of nations. “We follow,” says their ambassadour in the name of his commonwealth, “the common nature and genius of mankind, which appoints those to be masters, who are superiour in strength. We have not made this law; nor are we the first, who have appealed to it. We received it from antiquity: we are determined to transmit it to the most distant futurity: and we claim and use it in our own case.”l
Brennus,10 at the head of his victorious and ferocious Gauls, with more conciseness, and with a less striking inconsistency of character, tells the vanquished Romans “omnia fortium esse.”m Every thing belongs to the bold and the strong.
The prudent Plutarch thinks it “the first and principal law of nature, that he whose circumstances require protection and deliverance, should admit him for his ruler, who is able to protect and deliver him.”n
For us, it is sufficient, as men, as citizens, and as states, to say, that power is nothing more than the right of the strongest, and may be opposed by the same right, by the same means, and by the same principles, which are employed to establish it. Bare force, far from producing an obligation to obey, produces an obligation to resist.
Others, unwilling to rest the office of legislation and the right of sovereignty simply on superiority of power, have to this quality superadded preeminence or superiour excellence of nature.
Let it be remembered all along, that I am examining the doctrine of superiority, as applied to human laws, the proper and immediate object of investigation in these lectures. Of the law that is divine, we shall have occasion, at another time, to speak, with the reverence and gratitude which become us.
“It is a law of nature,” says Dionysius11 of Halicarnassus, “common to all men, and which no time shall disannul or destroy, that those, who have more strength and excellence, shall bear rule over those, who have less.”o The favourers of this opinion are unfortunate, both in the illustrations, by which they attempt to evince it; and in the inferences, to which they contend it gives rise.
Because Cicero, by a beautiful metaphor, describes the government of the other powers of the mind as assigned, by nature, to the understanding; does it follow that, in strict propriety of reasoning, the right of legislation is annexed, without any assignment, to superiour excellence?
Aristotle, it seems, has said, that if a man could be found, excelling in all virtues, such an one would have a fair title to be king. These words may well be understood as conveying, and probably were intended to convey, only this unquestionable truth—that excellence, in every virtue furnished the strongest recommendation, in favour of its happy possessor, to be elected for the exercise of authority. If so, the opinion of Aristotle is urged without a foundation properly laid in the fact.
But let us suppose the contrary: let us suppose it to be the judgment of Aristotle, that the person, whom he characterizes, derived his right to the exercise of power, not from the donation made to him by a voluntary election, but solely from his superiour talents and excellence; shall the judgment of Aristotle supersede inquiry into its reasonableness? Shall the judgment of Aristotle, if found, on inquiry, to be unreasonable, silence all reprehension or confutation? Decent respect for authority is favourable to science. Implicit confidence is its bane. Let us adopt—for it is necessary, in the cause of truth and freedom, that we should adopt—the manly expostulation, which the ardent pursuit of knowledge drew from the great Bacon—“Why should a few received authors stand up like Hercules’s columns, beyond which there should be no sailing or discovery?”
To Aristotle, more than to any other writer, either ancient or modern, this expostulation is strictly applicable. Hear what the learned Grotius says on this subject. “Among philosophers, Aristotle deservedly holds the chief place, whether you consider his method of treating subjects, or the acuteness of his distinctions, or the weight of his reasons. I could only wish that the authority of this great man had not, for some ages past, degenerated into tyranny; so that truth, for the discovery of which Aristotle took so great pains, is now oppressed by nothing more than by the very name of Aristotle.”p
Guided and supported by the sentiments and by the conduct of Grotius and Bacon, let us proceed, with freedom and candour combined, to examine the judgment—though I am very doubtful whether it was the judgment—of Aristotle, that the right of sovereignty is founded on superiour excellence.
To that superiority, which attaches the right to command, there must be a corresponding inferiority, which imposes the obligation to obey. Does this right and this obligation result from every kind and every degree of superiority in one, and from every kind and every degree of inferiority in another? How is excellence to be rated or ascertained?
Let us suppose three persons in three different grades of excellence. Is he in the lowest to receive the law immediately from him in the highest? Is he in the highest to give the law immediately to him in the lowest grade? Or is there to be a gradation of law as well as of excellence? Is the command of the first to the third to be conveyed through the medium of the second? Is the obedience of the third to be paid, through the same medium, to the first? Augment the number of grades, and you multiply the confusion of their intricate and endless consequences.
Is this a foundation sufficient for supporting the solid and durable superstructure of law? Shall this foundation, insufficient as it is, be laid in the contingency—allowed to be improbable, not asserted to be even possible—“if a man can be found, excelling in all virtues?”
Had it been the intention of Providence, that some men should govern the rest, without their consent, we should have seen as indisputable marks distinguishing these superiours from those placed under them, as those which distinguish men from the brutes. The remark of Rumbald,12 in the nonresistance time of Charles the second, evinced propriety as well as wit. He could not conceive that the Almighty intended, that the greatest part of mankind should come into the world with saddles on their backs and bridles in their mouths, and that a few should come ready booted and spurred to ride the rest to death.q Still more apposite to our purpose is the saying of him, who declared that he would never subscribe the doctrine of the divine right of princes, till he beheld subjects born with bunches on their backs, like camels, and kings with combs on their heads, like cocks; from which striking marks it might indeed be collected, that the former were designed to labour and to suffer, and the latter, to strut and to crow.r
These pretensions to superiority, when viewed from the proper point of sight, appear, indeed, absurd and ridiculous. But these pretensions, absurd and ridiculous as they are, when rounded and gilded by flattery, and swallowed by pride, have become, in the breasts of princes, a deadly poison to their own virtues, and to the happiness of their unfortunate subjects. Those, who have been bred to be kings, have generally, by the prostituted views of their courtiers and instructors, been taught to esteem themselves a distinct and superiour species among men, in the same manner as men are a distinct and superiour species among animals.
Lewis the fourteenth was a strong instance of the effect of that inverted manner of teaching and thinking, which forms kings to be tyrants, without knowing or even suspecting that they are so. That oppression, under which he held his subjects, during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By this, he had been accustomed to consider his kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his ministers represented to him the miserable condition to which those subjects were reduced, and, in the course of his representation, frequently used the word “l’etat,” the state; the king, though he felt the truth, and approved the substance of all that was said, yet was shocked at the frequent repetition of the word “l’etat,” and complained of it as an indecency offered to his person and character.
And, indeed, that kings should imagine themselves the final causes, for which men were made, and societies were formed, and governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers have taught or favoured principles, which necessarily lead to the same conclusions.
Barbeyrac,13 whose commentaries enrich the performances of the most distinguished philosophers, at one time, taught and favoured principles, which necessarily led to the conclusions, so degrading and so destructive to the human race. On this subject, it will be worth while to pursue his train of thought.
In the formation of societies and civil governments, three different conventions or agreements are supposed, by Puffendorff and many other writers, to have taken place. The first convention is an engagement, by those who compose the society or state, to associate together in one body; and to regulate, with one common consent, whatever regards their preservation, their security, their improvement, and their happiness. The second convention is, to specify the form of government, that shall be established among them. The third convention is an engagement between the following parties; that is to say, the person or persons, on whom the sovereignty, or superiority, or majesty—for it is called by all these names—is conferred, on one hand; and, on the other hand, those who have conferred this sovereignty, this superiority, this majesty; and are now, by that step, as it seems, become subjects. By this third convention, the sovereign engages to consult the common security and advantage of the subjects; and the subjects engage to observe fidelity and allegiance to the sovereign. From this last convention, the state is supposed to receive its final completion and perfection.
This account of the origin of society and government will be fully considered afterwards. I introduce it now, in order to show the force and import of Barbeyrac’s observation concerning it. “The first convention,” says he, “is only, with regard to the second, what scaffolding is with regard to the building, for whose construction it was erected.”s
And is it so? Is society nothing more than a scaffolding, by the means of which government may be erected; and which, consequently, may be prostrated, as soon as the edifice of civil government is built? If this is so, it must have required but a small portion of courtly ingenuity to persuade Lewis the fourteenth, that, in a monarchy, government was nothing but a scaffolding for the king.
For the honour of Barbeyrac, however, let not this account be concluded, till it be told, that this did not continue to be always his sentiment; that, on consideration and reflection, this sentiment was changed; and that, when it was changed, he, as every other great and good man will do on similar occasions, freely and nobly retracted it. But although it has been retracted by Barbeyrac, it has neither been retracted nor abandoned by some others.
To evince that I speak not without foundation, and to show, what will not be suspected till they are shown, the extravagant notions which have been entertained on this head, I will adduce a number of sentences and quotations, which Grotiust has collected together, in order to combat the sentiments of those, who hold that the supreme power is, always and without exception, in the people.
Historians and philosophers, poets and princes, bishops and fathers, are all summoned to oppose the dangerous doctrine.
When Tacitus says, “that, as we must bear with storms, barrenness, and the inconveniences of nature, so we must bear with the luxury or avarice of princes;” Grotius tells us, “’tis admirably said.” Marcus Antoninus,14 the philosopher, is produced as an authority, “that magistrates are to judge of private persons, princes of magistrates, but God alone of princes.” King Vitigis15 declares, that “what regards the royal power is to be judged by the powers above; because it is derived from heaven, and is accountable to heaven alone.” Ireneus,16 we are informed, says excellently, “by whose orders men are born, by his command kings are ordained.” The same doctrine is contained in the constitutions of Clement. “You shall fear the king, knowing that he is chosen of God.”
In a tragedy of Aeschylus, the suppliants use this language to the king. “Sir, you are the city and the publick; you are an independent judge. Seated upon your throne as upon an altar, you alone govern all by your absolute commands.”
Here we have the very archetype of the idea of Lewis the fourteenth, sanctioned by the name of Grotius. If the king was the city and the publick; to mention “l’etat” in his presence, as something separate and distinct, was certainly an indecency; because it contained an implied though distant limitation of his power.
The reverend bishop of Tours17 addresses the king of France in this very remarkable manner: “If any of us, O king! should transgress the bounds of justice, he may be punished by you: but if you yourself should offend, who shall call you to account? When we make representations to you, if you please, you hear us: but if you will not, who shall condemn you? There is none but he, who has declared himself to be justice itself.”
Let me also mention what Heineccius18 says, in much more recent times, in his System of Universal Law. “The doctrine,u which makes the people superiour to the king or prince, and places in the former the real, and in the latter only personal majesty, is a most petulant one. It is the doctrine of Hottoman, Sidney,19 Milton,20 and others. Since a people, when they unite into a republick, renounce their own will, and subject themselves to the will of another, with what front can they call themselves superiour to their sovereign?”
And yet Heineccius himself allows, that “Grotius (1. 3. 8.) is thought by not a few, to have given some handle to the doctrine of passive obedience and nonresistance.”
Indeed, the lawyers of almost all the states of Europe represent kings as legislators: and we know, that, in the dictionaries of many, legislative and unlimited power are synonimous terms. To unlimited power, the correlative is passive obedience.
Even Baron de Wolfius,21 the late celebrated philosopher of Hall, lays down propositions concerning patrimonial kingdoms, without rejecting or contradicting a distinction, so injurious to the freedom and the rights of men.
Domat,22 in his book on the civil law, derives the power of governours from divine authority. “It is always he (God) who places them in the seat of authority: it is from him alone that they derive all the power and authority that they have; and it is the ministry of his justice that is committed to them. And seeing it is God himself whom they represent, in the rank which raises them above others; he will have them to be considered as holding his place in their functions. And it is for this reason, that he himself gives the name of gods to those, to whom he communicates the right of governing and judging men.”v
To diminish the force of the foregoing citations, it may be said, that, in all probability, Lewis the fourteenth—and the same may be said of other princes equally ignorant—never read the tragedies of Aeschylus, nor the history of Gregory of Tours.23 It is highly probable that he never did: but it is equally probable, that their sentiments were known in his court, and found the way, through the channels of flattery, to the royal ear. But the writings of Grotius must have been well known in France, and probably to Lewis the fourteenth himself. This very book of the Rights of War and Peace was dedicated to his father, Lewis the thirteenth; and its author, we are told, had credit with some of the ministers of that prince.
Every plausible notion in favour of arbitrary power, appearing in a respectable dress, and introduced by an influential patron, is received with eagerness, protected with vigilance, and diffused with solicitude, by an arbitrary government. The consequence is, that, in such a government, political prejudices are last of all, if ever, overcome or eradicated.
But these doctrines, it may be replied, are not now believed, even in France. But they have been believed—they have been believed, even in France, to the slavery and misery of millions. And if, happily, they are not still believed there; unfortunately, they are still believed in other countries.
But I ask—why should they be believed at all? I ask further: if they are not, and ought not to be believed; why is their principle suffered to lie latent and lurking at the root of the science of law? Why is that principle continued a part of the very definition of law?
The pestilent seed may seem, at present, to have lost its vegetating power: but an unfriendly season and a rank soil may still revive it. It ought to be finally extirpated. It has, even within our own remembrance, done much real mischief. The position, that law is inseparably attached to superiour power, was the political weapon used, with the greatest force and the greatest skill, in favour of the despotick claims of Great Britain over the American colonies. Of this, the most striking proofs will appear hereafter. Let me, at present, adopt the sentiments expressed, on a similar subject, by Vattel. “If the base flatterers of despotick power rise up against my principles; I shall have, on my side, the friend of laws, the true citizen, and the virtuous man.”w
Let us conclude our observations upon this hypothesis concerning the origin of sovereignty, by suggesting, that were it as solid as it is unsound in speculation, it would be wholly visionary and useless in practice. Where would minions and courtly flatterers find the objects, to which they could, even with courtly decency, ascribe superiour talents, superiour virtue, or a superiour nature, so as to entitle them, even on their own principles, to legislation and government?
We have now examined the inherent qualities, which have been alleged as sufficient to entitle, to the right and office of legislation, the superiour, whose interposition is considered as essential to a law. We have weighed them in the balance, and we have found them wanting.
If this superiour cannot rest a title on any inherent qualities; the qualities, which constitute his title, if any title he has, must be such as are derivative. If derivative; they must be derived either from a source that is human, or from a source that is divine. “Over a whole grand multitude,” says the judiciousx Hooker, “consisting of many families, impossible it is, that any should have complete lawful power, but by consent of men, or by immediate appointment of God.” We will consider those sources separately.
How is this superiour constituted by human authority? How far does his superiority extend? Over whom is it exercised? Can any person or power, appointed by human authority, be superiour to those by whom he is appointed, and so form a necessary and essential part in the definition of a law?
On these questions, a profound, I will not say a suspicious silence is observed. By the Author of the Commentaries, this superiour is announced in a very questionable shape. We can neither tell who he is, nor whence he comes. “When society is once formed, government results of course”—I use the wordsy of the Commentary—“as necessary to preserve and to keep that society in order. Unless some superiour be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But as all the members of the society are naturally equal, it may be asked”—what question may be asked? The most natural question, that occurs to me, is—how is this superiour, without whom, there can be no law, without whom there can be no judge upon earth—how is this superiour to be constituted? This is the question, which, on this occasion, I would expect to see proposed: this is the question, to which I would expect to hear an answer. But how suddenly is the scene shifted! Instead of the awful insignia of superiority, to which our view was just now directed, the mild emblems of confidence make their appearance. The person announced was a dread superiour: but the person introduced is a humble trustee. For, to proceed, “it may be asked, in whose hands are the reins of government to be intrusted?”
I very well know how “a society once formed” constitute a trustee: but I am yet to learn, and the Commentator has not yet informed me, how this society can constitute their superiour. Locke somewhere says that “no one can confer more power on another, than he possesses himself.”z
If the information, how a superiour is appointed, be given in any other part of the valuable Commentaries; it has escaped my notice, or my memory. Indeed it has been remarked by his successour in the chair of law, that Sir William Blackstone “declines speaking of the origin of government.”a
The question recurs—how is this superiour constituted by human authority? Is he constituted by a law? If he is, that law, at least, must be made without a superiour; for by that law the superiour is constituted. If there can be no law without a superiour, then the institution of a superiour, by human authority, must be made in some other manner than by a law. In what other manner can human authority be exerted? Shall we say, that it may be exerted in a covenant or an engagement? Let us say, for we may say justly, that it may. Let us suppose the authority to be exerted, and the covenant or engagement to be made. Still the question recurs—can this authority so exerted, can this covenant or engagement so made, produce a superiour?
If he is now entitled to that appellation, he must be so by virtue of some thing, which he has received. But has he received more than was given? Could more be given than those, who gave it, possessed?
We can form clear conceptions of authority, original and derived, entire and divided into parts; but we have no clear conceptions how the parts can become greater than the whole; nor how authority, that is derived, can become superiour to that authority, from which the derivation is made.
If these observations are well founded; it will be difficult—perhaps we may say, impossible—to account for the institution of a superiour by human authority.
Is there any other human source, from which superiority can spring? ’Tis thought there is: ‘tis thought that human submission can effectuate a purpose, for the accomplishment of which human authority has been found to be unavailing.
And is it come to this! Must submission to an equal be the yoke, under which we must pass, before we can diffuse the mild power, or participate in the benign influence of law? If such is, indeed, our fate, let resignation be our aim: but before we resign ourselves, let us examine whether our fate be so hard.
That I may be able to convey a just and full representation of opinions, which have been entertained on this subject, I shall give an abstract of the manner, in which Puffendorff has reasoned concerning it, in his chapter on the generation of civil sovereignty.
His object is, “to examine whence that sovereignty or supreme command, which appears in every state, and which, as a kind of soul, informs, enlivens, and moves the publick body, is immediately produced.”
In this inquiry, he supposes that civil authority requires natural strength and a title. “Both these requisites,” says he, “immediately flow from those pacts, by which the state is united and subsists.” With regard to the former—natural strength—he observes, “that since all the members of the state, in submitting their wills to the will of a single director; did, at the same time, thereby oblige themselves to nonresistance, or to obey him in all his desires and endeavours of applying their strength and wealth to the good of the publick; it appears that he, who holds the sovereign rule, is possessed of sufficient force to compel the discharge of the injunctions, which he lays.”
”So, likewise,” adds he, “the same covenant affords a full and easy title, by which the sovereignty appears to be established, not upon violence, but in a lawful manner, upon the voluntary consent and subjection of the respective members.”
“This, then,” continues he, “is the nearest and immediate, cause, from which sovereign authority, as a moral quality, doth result. For if we suppose submission in one party, and, in another, the acceptance of that submission; there accrues, presently, to the latter, a right of imposing commands on the former; which is what we term sovereignty or rule. And as, by private contract, the right of any thing which we possess, so, by submission, the right to dispose of our strength and our liberty of acting, may be conveyed to another.”
He illustrates this immediate cause of sovereign authority, by the following instance. “If any person should voluntarily and upon covenant deliver himself to me in servitude, he thereby really confers on me the power of a master.” “Against which way of arguing, to object the vulgar maxim, quod quis non habet, non potest in alterum transferre,b24 is but a piece of trifling ignorance.”c
Shall we, for a moment, suppose all this to be done? What is left to the people? Nothing. What are they? Slaves. What will be their portion? That of the beasts—instinct, compliance, and punishment. So true it is, that in the attempt to make one person more than man, millions must be made less.
We now see the price, at which law must be purchased; for we see the terms, on which a superiour, of such absolute necessity to a law, is constituted, according to the hypothesis, of which I have given an account. We see the covenants which must be entered into, the consent which must be given, the submission which must be made, the subjection which must be undergone, the state, analogous to servitude, which must be supposed, before this system of superiority can be completed. Has this been always done—must this be always done, in every state, where law is known or felt?
Without examining its incongruity with reason, with freedom, and with fact; without insisting on the incoherence of the parts, and the unsoundness of the whole, I shall, again, for a moment, take it all for granted: and, on that supposition, I shall put the question—Is even all this sufficient to constitute a superiour? Is it in the power of the meanest to prostitute, any more than it is in the power of the greatest to delegate, what he does not possess?d The arguments, therefore, which we used with regard to the appointment of a superiour by human authority, will equally apply to his appointment by human submission. The manner may be different: the result will be the same.
Indeed, the author of this system betrays a secret consciousness, that it is too weak and too disjointed to stand without an extrinsick support. “Yet still,” says he, “to procure to the supreme command an especial efficacy, and a sacred respect, there is need of another additional principle, besides the submission of the subjects. And therefore he who affirms sovereignty to result immediately from compact, doth not, in the least, detract from the sacred character of civil government; or maintain that princes bear rule, by human right only, and not by divine.”e
It deserves remark, that, in this passage, Puffendorff assumes the divine right of princes to bear rule, as an admitted principle; and seems only solicitous to show, that the account, which he has given, of the origin of sovereignty, is not inconsistent with their sacred character.
After some further observations with regard to the source of government and the cause of sovereignty, the author acknowledges, that there is very little difference between his sentiments on the subject, and those of Boecler.26 What Boecler’s sentiments were, we learn from the account given of them by our author. “The supreme authority,”f says Boecler, “is not to be derived from the bare act of man, but from the command of God, and from the law of nature; or from such an act of men; by which the law of nature was followed and obeyed.”
So far Puffendorff seems willing to go. He adopts a kind of compromising principle. He founds the right of the sovereign immediately upon the submission of the subjects; but, to complete the efficacy of supreme command, he calls in the aid of an additional principle, the sacred character of civil government, and the divine right of princes to bear rule. Further he was unwilling to proceed.
It has been often the fate of a compromise between two parties, that it has given entire satisfaction to neither. Such has been the fate of that adopted by Puffendorff. Some will certainly think, that he has given too much countenance to the claim, which princes have boldly made, of a divine right to rule. Others have thought, that, into his composition of a sovereign, he has infused too great a proportion of human authority. They pursue the source of sovereignty further than he is willing to accompany them, and maintain, that it is the Supreme Being, who confers immediately the supreme power on princes, without the intervention or concurrence of man.
This doctrine, in some countries, and at some periods, has been carried, and is still carried, to a very extravagant height, and has been supported and propagated, and still is supported and propagated, with uncommon zeal. It has been, and still is, a favourite at courts; and has been, and still is, treated with every appearance of profound respect by courtiers, and, in too many instances, by philosophers and by statesmen, who have imitated, and still imitate courtiers in their practice of the slavish art. In the reign of James the second,27 “the immediate emanation of divine authority” was introduced on every occasion, and ingrafted, often with the strangest impropriety, on every subject. Even in the present century, a book has been burnt by the hangman, because its author maintained, “that God is not the immediate cause of sovereignty.”g
It cannot escape observation, that, in one particular, those who carry this doctrine the furthest, seem to challenge, with some success, the palm of consistency from those, who refuse to accompany them. Both entertain the same sentiments—and they are certainly overcharged ones—concerning sovereignty and superiority. Thus far they march together. But here, one division halt. The other proceed, and, looking back on those behind them, demand, why, having gone so far, they refuse to accomplish the journey. They insist, that all human causes are inadequate to the production of that superiority or sovereignty, about the august and sacred character of which they are both agreed. They say that neither particular men, nor a multitude of men, are themselves possessed of this sovereignty or superiority; and that, therefore, they cannot confer it on the prince. The consequence is, that, as this superiority is admitted to exist, and as it cannot be conferred by men, it must derive its origin from a higher source.
It is in this manner that Domat reasons concerning the origin of sovereignty and government. “As there is none but God alone who is the natural sovereign of man; so it is likewise from him that they who govern derive all their power and authority. It is one of the ceremonies in the coronation of the kings of France, for them to take the sword from the altar; thereby to denote, that it is immediately from the hand of God that they derive the sovereign power, of which the sword is the principal emblem.”h
In the same train of sentiment, Bishop Taylori28 observes, “that the legislative or supreme power is not the servant of the people, but the minister, the trustee, and the representative of God: that all just human power is given from above, not from beneath; from God, not, from the people.”
The answer to the foregoing reasoning appears to me to be more ingenious than solid, and to be productive of amusement, rather than of conviction. I shall deliver it from Burlamaqui, who, on this subject, has followed the opinions of Puffendorff. “This argument,” says he, “proves nothing. It is true, that neither each member of the society, nor the whole multitude collected, are formally invested with the supreme authority; but it is sufficient that they possess it virtually; that is, that they have within themselves all that is necessary to enable them, by the concurrence of their free will and consent, to produce it in the sovereign. Since every individual has a natural right of disposing of his own natural freedom, according as he thinks proper; why should he not have a power of transferring to another, that right which he has of directing himself? Now is it not manifest, that, if all the members of the society agree to transfer this right to one of their fellow members, this cession will be the nearest and immediate cause of sovereignty? It is, therefore, evident, that there are, in each individual, the seeds, as it were, of the supreme power. The case is here very near the same, as in that of several voices collected together, which, by their union, produce a harmony, that was not to be found separately in each.”k
The metaphors from vegetation and musick may illustrate and please; but they cannot prove nor convince. The notion of virtual sovereignty is as unsatisfactory to me, on this occasion, as that of virtual representation has been, on many others. Indeed, I see but little difference between a claim to derive from another that, which he is willing to give, but of which he is not possessed, and a claim to derive from him that, which he possesses, but which he has not given, and will not give.
Besides; let me repeat the questions, which I formerly put.—Have these degrading steps been always taken? must they be always taken, in every state, where law is known or felt? For let it not be forgotten, that superiority is introduced as a necessary part of the definition of law.
I will not attempt to paint the hideous consequences that have been drawn, nor the still more hideous practices that have claimed impunity, indulgence, and even sanction, from the pretended principle of the divine right of princes. Absolute, unlimited, and indefeasible power, nonresistance, passive obedience, tyranny, slavery, and misery walk in its train.
On this subject—its importance cannot be overrated—let us receive instruction from a well informed and a well experienced master—from one, who, probably, in some periods of his life, had felt what he so feelingly describes—from one, who had been bred to the trade of a prince, and who had been perfectly initiated in all the mysteries of the profession—from the late Frederick of Prussia.
“If my reflections,” says he,
shall be fortunate enough, to reach the ears of some princes, they will find among them certain truths, which they never would have heard from the lips of their courtiers and flatterers. Perhaps they will be struck with astonishment, to see such truths placed, by their side, on the throne. But it is time, that, at last, they should learn, that their false principles are the most empoisoned source—la source la plus empoisonée—of the calamities of Europe.
Here is the errour of the greatest part of princes. They believe that God has expressly, and from a particular attention to their grandeur, their happiness, and their pride, formed their subjects for no other purpose, than to be the ministers and instruments of their unbridled passions. As the principle, from which they set out, is false; the consequences cannot be otherwise than infinitely pernicious. Hence the unregulated passion for false glory—hence the inflamed desire of conquest—hence the oppressions laid upon the people—hence the indolence and dissipation of princes—hence their ambition, their injustice, their inhumanity, their tyranny—hence, in short, all those vices, which degrade the nature of man.
If they would disrobe themselves of these erroneous opinions; if they would ascend to the true origin of their appointment; they would see, that their elevation and rank, of which they are so jealous, are, indeed, nothing else than the work of the people; they would see, that the myriads of men, placed under their care, have not made themselves the slaves of one single man, with a view to render him more powerful and more formidable; have not submitted themselves to a fellow citizen, in order to become the sport of his fancies, and the martyrs of his caprice; but have chosen, from among themselves, the man, whom they believed to be the most just, that he might govern them; the best, that he might supply the place of a father; the most humane, that he might compassionate and relieve their misfortunes; the most valiant, that he might defend them against their enemies; the most wise, that he might not engage them inconsiderately in ruinous and destructive wars; in one word, the man the most proper to represent the body of the state, and in whom the sovereign power might become a bulwark to justice and to the laws, and not an engine, by the force of which tyranny might be exercised, and crimes might be committed with impunity.
This principle being once established, princes would avoid the two rocks, which, in all ages, have produced the ruin of empires, and distraction in the political world—ungoverned ambition, and a listless inattention to affairs.”l “They would often reflect that they are men, as well as the least of their subjects—that if they are the first judges, the first generals, the first financiers, the first ministers of society; they are so, for the purpose of fulfilling the duties, which those names import. They will reflect, that they are only the first servants of the state, bound to act with the same integrity, the same caution, and the same entire disinterestedness, as if, at every moment, they were to render an account of their administration to the citizens.”m
I will not charge to the authors, whose opinions I have examined, all the consequences that have been drawn, practically as well as theoretically, from their principles. From their principles, however, admitted by themselves without due caution and scrutiny, those consequences have been drawn by others, and drawn too accurately and too successfully for the peace, liberty, and happiness of men.
After all, I am much inclined, for the honour of human nature, to believe, that all this doctrine concerning the divine right of kings was, at first, encouraged and cherished by many, from motives, mistaken certainly, but pardonable, and even laudable, and that it was intended not so much to introduce the tyranny of princes, as to form a barrier against the tyranny of priests.
One of them, at the head of a numerous, a formidable, and a well disciplined phalanx, claimed to be the Almighty’s vicegerent upon earth; claimed the power of deposing kings, disposing crowns, releasing subjects from their allegiance, and overruling the whole transactions of the christian world. Superstition and ignorance dreaded, but could not oppose, the presumptuous claim. The Pope had obtained, what Archimedes wanted, another world, on which he placed his ecclesiastical machinery; and it was no wonder that he moved this according to his will and pleasure. Princes and potentates, states and kingdoms were prostrate before him. Every thing human was obliged to bend under the incumbent pressure of divine control.
It is not improbable, that, in this disagreeable predicament, the divine right of kings was considered as the only principle, which could be opposed to the claims of the papal throne; and as the only means, which could preserve the civil, from being swallowed by the ecclesiastical powers.
This conjecture receives a degree of probability from a fact, which is mentioned in the history of France.
In a general assembly of the states of the kingdom, it was proposed to canonize this position—“that kings derive their authority immediately from God.” That such a proposition was made in an assembly of the states, the most popular body known in the kingdom, will, no doubt, occasion surprise. This surprise will be increased, when it is mentioned, that the proposition was patronized by the most popular part of that assembly: it was the third estate, which wished to pass it into a law. But every thing is naturally and easily accounted for, when it is mentioned further, that the principal object, which the third estate had in view by this measure, was to secure the sovereign authority from the detestable maxims of those, who made it depend upon the pope, by giving him a power of absolving subjects from their oath of allegiance, and authorizing those who assassinated their princes as hereticks.n
The proposal did not pass into a law; because, among other reasons, the question was thought proper for the determination of the schools. But this much may safely be inferred, that what was thought proper by the third estate to be passed into a law, would be generally received through the kingdom, as popular and wholesome doctrine.
I confess myself pleased with indulging the conjecture I have mentioned.
When I entered upon the disquisition of the doctrine of a superiour as necessary to the very definition of law; I said, that, if I was not mistaken, this notion of superiority contained the germ of the divine right of princes to rule, and of the corresponding obligation on the people implicitly to obey. It may now be seen whether or not I have been mistaken; and, if I have not been mistaken, it appears, how important it is, carefully and patiently to examine a first principle; to trace it, with attention, to its highest origin; and to pursue it, with perseverance, to its most remote consequences. I have observed this conduct with regard to the principle in question. The result, I think, has been, that, as to human laws, the notion of a superiour is a notion unnecessary, unfounded, and dangerous; a notion inconsistent with the genuine system of human authority.
Now that the will of a superiour is discarded, as an improper principle of obligation in human laws, it is natural to ask—What principle shall be introduced in its place? In its place I introduce—the consent of those whose obedience the law requires. This I conceive to be the true origin of the obligation of human laws. This principle I shall view on all its sides; I shall examine it historically and legally; I shall consider it as a question of theory, and as a question of fact.
Let us ascend to the first ages of societies. Customs, for a long time, were the only laws known among them. The Lycianso had no written laws; they were governed entirely by customs. Among the ancient Britons also, no written laws were known: they were ruled by the traditionary—and if traditionary, probably, the customary—laws of the Druids.
Now custom is, of itself, intrinsick evidence of consent. How was a custom introduced? By voluntary adoption. How did it become general? By the instances of voluntary adoption being increased. How did it become lasting? By voluntary and satisfactory experience, which ratified and confirmed what voluntary adoption had introduced. In the introduction, in the extension, in the continuance of customary law, we find the operations of consent universally predominant.
“Customs,” in the striking and picturesque language of my Lord Bacon, “are laws written in living tables.”p In regulations of justice and of government, they have been more effectual than the best written laws. The Romans, in their happy periods of liberty, paid great regard to customary law. Let me mention, in one word, every thing that can enforce my sentiments: the common law of England is a customary law.
Among the earliest, among the freest, among the most improved nations of the world, we find a species of law prevailing, which carried, in its bosom, internal evidence of consent. History, therefore, bears a strong and a uniform testimony in favour of this species of law.
Let us consult the sentimentsq as well as the history of the ancients. I find a charge against them on this subject—“that they were not accurate enough in their expressions; because they frequently applied to laws the name of common agreements.”r This, it is acknowledged, they do almost every where in their writings. He, however, who accuses the ancient writers of inaccuracy in expression, ought himself to be consummately accurate. “Let those teach others, who themselves excel.” Whether the Baron Puffendorff was entitled to be a teacher in this particular, we stay not to examine. It is of more consequence to attend to the ground of his accusation.
One reason, why he urges their expressions to be inaccurate, is, that “neither the divine positive laws, nor the laws of nature had their rise from the agreement of men.” All this is, at once, admitted; but the present disquisition relates only to laws that are human. What is said with regard to them? With regard to them it is said, that “the Grecians, as in their other politick speeches, so in this too, had an eye to their own democratical governments; in which, because the laws were made upon the proposal of the magistrate, with the knowledge, and by the command, of the people, and so, as it were, in the way of bargain and stipulation; they gave them the name of covenants and agreements.”
I am now unsolicitous to repel the accusation: it seems, it was conceived to arise from a reference, by the ancients, to their democratical governments. Let them be called covenants, or agreements, or bargains, or stipulations, or any thing similar to any of those, still I am satisfied; for still every thing mentioned, and every thing similar to every thing mentioned, imports consent. Here history and law combine their evidence in support of consent.
Law has been denominated “a general convention of the citizens:” such is the definition of it in the Digest: for the Roman law was not, in every age of Rome, the law of slavery. A similar mode of expression has been long used in England. Magna Charta was made “by the common assent of all the realm.”s
Let us listen to the judicious and excellent Hooker: what he says always conveys instruction. “The lawful power of making laws to command whole politick societies of men, belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived, at the first, from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which publick approbation hath not made so.”t “Laws human, of what kind soever, are available by consent.”u
My Lord Shaftesbury, who formed his taste and judgment upon ancient writers and ancient opinions, delivers it as his sentiment, “That no people in a civil state can possibly be free, when they are otherwise governed, than by such laws as they themselves have constituted, or to which they have freely given consent.”v
This subject will receive peculiar illustration and importance, when we come to consider the description and characters of municipal law. I will not anticipate here what will be introduced there with much greater propriety and force.
Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.
The laws of God may be divided into the following species.
I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the “law eternal.”
II. That law, which is made for angels and the spirits of the just made perfect. This may be called the “law celestial.” This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: “In heaven his will is done.”
III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.
IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects.
As promulgated by reason and the moral sense, it has been called natural; as promulgated by the holy scriptures, it has been called revealed law.
As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations.
But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God.
Nature, or, to speak more properly, the Author of nature, has done much for us; but it is his gracious appointment and will, that we should also do much for ourselves. What we do, indeed, must be founded on what he has done; and the deficiencies of our laws must be supplied by the perfections of his. Human law must rest its authority, ultimately, upon the authority of that law, which is divine.
Of that law, the following are maxims—that no injury should be done—that a lawful engagement, voluntarily made, should be faithfully fulfilled. We now see the deep and the solid foundations of human law.
It is of two species. 1. That which a political society makes for itself. This is municipal law. 2. That which two or more political societies make for themselves. This is the voluntary law of nations.
In all these species of law—the law eternal—the law celestial—the law natural—the divine law, as it respects men and nations—the human law, as it also respects men and nations—man is deeply and intimately concerned. Of all these species of law, therefore, the knowledge must be most important to man.
Those parts of natural philosophy, which more immediately relate to the human body, are appropriated to the profession of physick.
The law eternal, the law celestial, and the law divine, as they are disclosed by that revelation, which has brought life and immortality to light, are the more peculiar objects of the profession of divinity.
The law of nature, the law of nations, and the municipal law form the objects of the profession of law.
From this short, but plain and, I hope, just statement of things, we perceive a principle of connexion between all the learned professions; but especially between the two last mentioned. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an essential part of both.
From this statement of things, we also perceive how important and dignified the profession of the law is, when traced to its sources, and viewed in its just extent.
The immediate objects of our attention are, the law of nature, the law of nations, and the municipal law of the United States, and of the several states which compose the Union. It will not be forgotten, that the constitutions of the United States, and of the individual states, form a capital part of their municipal law. On the two first of these three great heads, I shall be very general. On the last, especially on those parts of it, which comprehend the constitutions and publick law, I shall be more particular and minute.
[1. ]Both creditor and debtor of the world.
[t. ]Hooker 34.
[2. ]Richard Hooker (1554–1600) was an English theologian and author, who wrote the Of the Laws of Ecclesiastical Policy.
[u. ]1. Gill. (4to.) 690.
[v. ]Reid’s Ess. Int. 10. 11.
[3. ]Bad rules first.
[w. ]1. Bl. Com. 38.
[x. ]1. Bl. Com. 44.
[y. ]Hooker 2.
[z. ]Daws. Orig. Laws, 4. 14.
[a. ]Hooker 11.
[b. ]D. l. 1. t. 3. 32. p. 1.
[c. ]The first written laws in Greece were given only six centuries before the Christian era.—1. Gill. 7. (4to.)
[4. ]Most likely refers to Thomas Wentworth, the first Earl of Strafford (1593–1641) and a most capable statesman, who vigorously supported Charles I through his struggles with Parliament. Parliament passed a bill of attainder requiring his execution even though he was not convicted of a Capital crime.
[5. ]Damocles was a courtier of Dionysius II of Syracuse; he remarked that the king must be content and happy because of the power and authority he enjoyed. Dionysius offered to exchange places with Damocles for one day. He did so, and at the end of the day a banquet was held. At the end of the meal Damocles looked up to see a sword dangling above his head held by the strength of one horsehair. The sword of Damocles represents the perilous position of those with great power.
[d. ]Whitlocke 230.
[6. ]Janus is the Roman god of doorways and of beginnings and endings. In this case, Janus is referenced because a doorway faces both forward and backward.
[e. ]1. Bl. Com. 43.
[7. ]George Berkeley (1685–1753) was an Irish philosopher who advanced the theory of immaterialism.
[f. ]Puff. B. 1. c. 2. s. 6. p. 16. B. 1. c. 6. s. 1. 2. p. 56. 57.
[g. ]1. Bl. Com. 43.
[8. ]Thomas Hobbes (1588–1679) was an English philosopher who is best known for his 1648 book Leviathan.
[h. ]3. Dagge 95. 96.
[9. ]Robert Sanderson (1587–1663) was an English theologian and casuist. He was appointed Bishop of Lincoln in 1660.
[i. ]Daws. Orig. L. 3. cites Saund. Prael. 5. s. 3.
[k. ]De Cive 187. (Puff. 64.)
[l. ]Puff. 65. (Thucyd. l. 5. c. 105) 1. Anac. 351.
[10. ]Refers to the Brennus, a leader of the Celtic Gauls who sacked Rome in roughly 390 bc and uttered “Vae victus” (woe to the conquered).
[m. ]Puff. 65. (Livy.)
[n. ]Puff. 65. (Plut. in Pelop.)
[11. ]Dionysius of Halicarnassus was a Greek historian and rhetor who lived during the reign of Augustus. His Roman Antiquities was one of the few accounts of early Roman history and covers the mythical period to the first Punic War.
[o. ]Puff. 65. (Dion. Hal. b. 1. c. 5.)
[p. ]Gro. Prel. 28.
[12. ]Richard Rumbald (1622?–1685).
[q. ]1. Burgh. Pol. Dis. 3.
[r. ]Boling. Rem. 209.
[13. ]Jean Barbeyrac (1674–1744) was a French jurist whose fame chiefly lies with his preface and notes of his translation of Pufendorf’s The Duty of Man and Citizen According to Natural Law. He also translated works by Grotius and Richard Cumberland.
[s. ]Puff. 641. note to b. 7. c. 2. s. 8.
[t. ]Grotius 68–71.
[14. ]Marcus Aurelius Antoninus (121–180) was Roman Emperor from 161 to 180. He was also a Stoic philosopher.
[15. ]A Gothic king who reigned from 536 to 540.
[16. ]St. Irenaeus (130–202) was an early Christian theologian who is recognized as the second bishop of what is now Lyons, France.
[17. ]Possibly Gregory of Tours (c. 538–594).
[18. ]Johann Gottlieb Heineccius (1681–1741) was a German jurist who thought of law as a rational science rather than a system of explicit rules.
[u. ]2. Hein. 120. 121.
[19. ]Algernon Sidney (1622–1683) was an English politician who sided with the Parliament during the English Civil War and penned the Discourses on Government. He was later executed on a charge of treason.
[20. ]John Milton (1608–1674) was an English poet best known for Paradise Lost and his essay “Areopagitica” (1644).
[21. ]Christian Wolff, or Wolfius (1679–1754), was a German philosopher.
[22. ]Jean Domat (1625–1696) was a French jurist and author who published Le Droit public, a work that attempts to found law on religious or ethical principles.
[v. ]1. Domat XXII.
[23. ]Gregory of Tours (c. 538–594) was a historian and the bishop of Tours. He wrote The History of the Franks and is the main source of contemporary knowledge of Merovingian history.
[w. ]Vattel Pref. 14.
[x. ]Hooker. b. 1. s. 10. p. 18.
[y. ]1. Bl. Com. 48.
[z. ]Lock. Gov. p. 2. s. 6.
[a. ]El. Jur. 23.
[b. ]Puff. b. 7. c. 3. s. 1. p. 654. 655.
[24. ]That which someone does not consider, does not afterwards carry over.
[c. ]All this, it is true, has been done, in fact. This act of legal suicide has been often perpetrated; and, in the history of some periods, we find the prescribed form, by which liberty was extinguished—a form truly congenial with the transaction—a form expressed in terms the most disgraceful to the dignity of man. “Licentiam habeatis, mihi qualemcunque volueritis disciplinam ponere, vel venumdare, aut quod vobis placuerit de me facere.”25 (6. Gibbon 361. cites Marculf. Formul.) But these periods were the periods which introduced and established the feudal law. “The majesty of the Roman law protected the liberty of the citizen against his own distress or despair.” 6. Gibbon. 360.
[d. ]Let individuals, in any number whatever, become severally and successively subject to one man, they are all, in that case, nothing more than master and slaves; they are not a people governed by their chief; they are an aggregate, if you will; but they do not form an association; there subsists among them neither commonwealth nor body politick. Such a superiour, though he should become master of half the world, would be still a private person, and his interest, separate and distinct from that of his people, would be still no more than a private interest. Rousseau’s Orig. Comp. 17. 18.
[e. ]Puff. 655. b. 7. c. 3. s. 1.—2. Burl. 39.
[26. ]Johann Heinrich Boecler (1611–1672) was a German scholar of history and politics.
[f. ]Puff. 655. b. 7. c. 3. s. 1.
[27. ]James II (1633–1701) was king of England from 1685 until the Glorious Revolution of 1688.
[g. ]Puff. 656. note to b. 7. c. 3. s. 3.
[h. ]2. Domat 298, 299.
[i. ]Rule of Conscience 429.
[28. ]Jeremy Taylor (1613–1667) was an English clergyman and prolific writer.
[29. ]Gaius Julius Caesar Augustus Germanicus, or Caligula, (12–41) was Roman Emperor from 37 to 41.
[j. ]Rous. Or. Com 6.
[k. ]2. Burl. 41, 42.
[l. ]K. Prus. works. v. 6. p. 48. 50.
[m. ]Id. p. 83. 84.
[n. ]Puff. 656. n.
[o. ]1. Gog. Or. Laws. 8.
[p. ]4. Ld. Bac. 5.
[q. ]Mens, et animus, et consilium, et sententia civitatis posita est in legibus. Ut corpora nostra sine mente; sic civitas sine lege, suis partibus, ut nervis, ac sanguine, et membris, uti non potest. Legum ministri, magistratus; legum interpretes, judices: legum denique idcirco omnes servi sumus, ut liberi esse possimus.30 Cicero pro Cluen. c. 53.
[r. ]Puff. 59. b. 1. c. 6. s. 7.
[s. ]Sulliv. Pref. 18.
[t. ]Hooker. b. 1. s. 10. p. 19.
[u. ]Id. p. 20.
[v. ]3. Shaft. 312.
[c. ]All this, it is true, has been done, in fact. This act of legal suicide has been often perpetrated; and, in the history of some periods, we find the prescribed form, by which liberty was extinguished—a form truly congenial with the transaction—a form expressed in terms the most disgraceful to the dignity of man. “Licentiam habeatis, mihi qualemcunque volueritis disciplinam ponere, vel venumdare, aut quod vobis placuerit de me facere.”25 (6. Gibbon 361. cites Marculf. Formul.) But these periods were the periods which introduced and established the feudal law. “The majesty of the Roman law protected the liberty of the citizen against his own distress or despair.” 6. Gibbon. 360.
[q. ]Mens, et animus, et consilium, et sententia civitatis posita est in legibus. Ut corpora nostra sine mente; sic civitas sine lege, suis partibus, ut nervis, ac sanguine, et membris, uti non potest. Legum ministri, magistratus; legum interpretes, judices: legum denique idcirco omnes servi sumus, ut liberi esse possimus.30 Cicero pro Cluen. c. 53.
[25. ]Take every liberty, place whatever restriction you wish upon me, or sell me as a slave, or do whatever you please with me.
[30. ]The mind, the soul, the wisdom, and the judgment of the state rests in the laws. Just as we cannot use our bodies without the mind, so that state, without the law, cannot use its own parts, as though they were nerves, blood, and limbs. The laws’ administrators are the magistrates; their interpreters the judges; we are all the laws’ slaves, so that we may be free.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: CHAPTER III.: Of the Law of Nature.
Accessed from oll.libertyfund.org/title/2072/156459 on 2008-08-21
The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.
In every period of our existence, in every situation, in which we can be placed, much is to be known, much is to be done, much is to be enjoyed. But all that is to be known, all that is to be done, all that is to be enjoyed, depends upon the proper exertion and direction of our numerous powers. In this immense ocean of intelligence and action, are we left without a compass and without a chart? Is there no pole star, by which we may regulate our course? Has the all-gracious and all-wise Author of our existence formed us for such great and such good ends; and has he left us without a conductor to lead us in the way, by which those ends may be attained? Has he made us capable of observing a rule, and has he furnished us with no rule, which we ought to observe? Let us examine these questions—for they are important ones—with patience and with attention. Our labours will, in all probability, be amply repaid. We shall probably find that, to direct the more important parts of our conduct, the bountiful Governour of the universe has been graciously pleased to provide us with a law; and that, to direct the less important parts of it, he has made us capable of providing a law for ourselves.
That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles.
In the course of our remarks on that part of Sir William Blackstone’s definition of law, which includes the idea of a superiour as essential to it, we remarked, with particular care, that it was only with regard to human laws that we controverted the justness or propriety of that idea. It was incumbent on us to mark this distinction particularly; for with regard to laws which are divine, they truly come from a superiour—from Him who is supreme.
Between beings, who, in their nature, powers, and situation, are so perfectly equal, that nothing can be ascribed to one, which is not applicable to the other, there can be neither superiority nor dependence. With regard to such beings, no reason can be assigned, why any one should assume authority over others, which may not, with equal propriety, be assigned, why each of those others should assume authority over that one. To constitute superiority and dependence, there must be an essential difference of qualities, on which those relations may be founded.a
Some allege, that the sole superiority of strength, or, as they express it, an irresistible power, is the true foundation of the right of prescribing laws. “This superiority of power gives,” say they, “a right of reigning, by the impossibility, in which it places others, of resisting him, who has so great an advantage over them.”b
Others derive the right of prescribing laws and imposing obligations from superiour excellence of nature. “This,” say they, “not only renders a being independent of those, who are of a nature inferiour to it; but leads us to believe, that the latter were made for the sake of the former.” For a proof of this, they appeal to the constitution of man. “Here,” they tell us, “the soul governs, as being the noblest part.” “On the same foundation,” they add, “the empire of man over the brute creation is built.”c
Others, again, say, that “properly speaking, there is only one general source of superiority and obligation. God is our creator: in him we live, and move, and have our being: from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority.”d
With regard to the first hypothesis, it is totally insufficient; nay, it is absolutely false. Because I cannot resist, am I obliged to obey? Because another is possessed of superiour force, am I bound to acknowledge his will as the rule of my conduct? Every obligation supposes motives that influence the conscience and determine the will, so that we should think it wrong not to obey, even if resistance was in our power. But a person, who alleges only the law of the strongest, proposes no motive to influence the conscience, or to determine the will. Superiour force may reside with predominant malevolence. Has force, exerted for the purposes of malevolence, a right to command? Can it impose an obligation to obey? No. Resistance to such force is a right; and, if resistance can prove effectual, it is a duty also. On some occasions, all our efforts may, indeed, be useless; and an attempt to resist would frustrate its own aim: but, on such occasions, the exercise of resistance only is suspended; the right of resistance is not extinguished: we may continue, for a time, under a constraint; but we come not under an obligation: we may suffer all the external effects of superiour force; but we feel not the internal influence of superiour authority?e
The second hypothesis has in it something plausible; but, on examination, it will not be found to be accurate. Wherever a being of superiour excellence is found, his excellence, as well as every other truth, ought, on proper occasions, to be acknowledged; we will go farther; it ought, as every thing excellent ought, to be esteemed. But must we go farther still? Is obedience the necessary consequence of honest acknowledgment and just esteem? Here we must make a pause: we must make some inquiries before we go forward. In what manner is this being of superiour excellence connected with us? What are his dispositions with regard to us? By what effects, if by any, will his superiour excellence be displayed? Will it be exerted for our happiness; or, as to us, will it not be exerted at all? We acknowledge—we esteem excellence; but till these questions are answered, we feel not ourselves under an obligation to obey it.f If the opinion of Epicurus1 concerning his divinities—that they were absolutely indifferent to the happiness and interests of men—was admitted for a moment;g the inference would unquestionably be—that they were not entitled to human obedience.
The third hypothesis contains a solemn truth, which ought to be examined with reverence and awe. It resolves the supreme right of prescribing laws for our conduct, and our indispensable duty of obeying those laws, into the omnipotence of the Divinity. This omnipotence let us humbly adore. Were we to suppose—but the supposition cannot be made—that infinite goodness could be disjoined from almighty power—but we cannot—must not proceed to the inference. No, it never can be drawn; for from almighty power infinite goodness can never be disjoined.
Let us join, in our weak conceptions, what are inseparable in their incomprehensible Archetype—infinite power—infinite wisdom—infinite goodness; and then we shall see, in its resplendent glory, the supreme right to rule: we shall feel the conscious sense of the perfect obligation to obey.
His infinite power enforces his laws, and carries them into full and effectual execution. His infinite wisdom knows and chooses the fittest means for accomplishing the ends which he proposes. His infinite goodness proposes such ends only as promote our felicity. By his power, he is able to remove whatever may possibly injure us, and to provide whatever is conducive to our happiness. By his wisdom, he knows our nature, our faculties, and our interests: he cannot be mistaken in the designs, which he proposes, nor in the means, which he employs to accomplish them. By his goodness, he proposes our happiness: and to that end directs the operations of his power and wisdom. Indeed, to his goodness alone we may trace the principle of his laws. Being infinitely and eternally happy in himself, his goodness alone could move him to create us, and give us the means of happiness. The same principle, that moved his creating, moves his governing power. The rule of his government we shall find to be reduced to this one paternal command—Let man pursue his own perfection and happiness.
What an enrapturing view of the moral government of the universe! Over all, goodness infinite reigns, guided by unerring wisdom, and supported by almighty power. What an instructive lesson to those who think, and are encouraged by their flatterers to think, that a portion of divine right is communicated to their rule. If this really was the case; their power ought to be subservient to their goodness, and their goodness should be employed in promoting the happiness of those, who are intrusted to their care. But princes, and the flatterers of princes, are guilty, in two respects, of the grossest errour and presumption. They claim to govern by divine institution and right. The principles of their government are repugnant to the principles of that government, which is divine. The principle of the divine government is goodness: they plume themselves with the gaudy insignia of power.
Well might nature’s poet say—
Shak. Meas. for Meas. Act II.
Where a supreme right to give laws exists, on one side, and a perfect obligation to obey them exists, on the other side; this relation, of itself, suggests the probability that laws will be made.
When we view the inanimate and irrational creation around and above us, and contemplate the beautiful order observed in all its motions and appearances; is not the supposition unnatural and improbable—that the rational and moral world should be abandoned to the frolicks of chance, or to the ravage of disorder? What would be the fate of man and of society, was every one at full liberty to do as he listed, without any fixed rule or principle of conduct, without a helm to steer him—a sport of the fierce gusts of passion, and the fluctuating billows of caprice?
To be without law is not agreeable to our nature; because, if we were without law, we should find many of our talents and powers hanging upon us like useless incumbrances. Why should we be illuminated by reason, were we only made to obey the impulse of irrational instinct? Why should we have the power of deliberating, and of balancing our determinations, if we were made to yield implicitly and unavoidably to the influence of the first impressions? Of what service to us would reflection be, if, after reflection, we were to be carried away irresistibly by the force of blind and impetuous appetites?
Without laws, what would be the state of society? The more ingenious and artful the twolegged animal, man, is, the more dangerous he would become to his equals: his ingenuity would degenerate into cunning; and his art would be employed for the purposes of malice. He would be deprived of all the benefits and pleasures of peaceful and social life: he would become a prey to all the distractions of licentiousness and war.
Is it probable—we repeat the question—is it probable that the Creator, infinitely wise and good, would leave his moral world in this chaos and disorder?
If we enter into ourselves, and view with attention what passes in our own breasts, we shall find, that what, at first, appeared probable, is proved, on closer examination, to be certain; we shall find, that God has not left himself without a witness, nor us without a guide.
We have already observed, that, concerning the nature and cause of obligation, many different opinions have been entertained, and much ingenious disputation has been held, by philosophers and writers on jurisprudence. It will not be improper to take a summary view of those opinions.
Some philosophers maintain, that all obligation arises from the relations of things;h from a certain proportion or disproportion, a certain fitness or unfitness, between objects and actions, which give a beauty to some, and a deformity to others. They say, that the rules of morality are founded on the nature of things; and are agreeable to the order necessary for the beauty of the universe.i
Others allege, that every rule whatever of human actions carries with it a moral necessity of conforming to it; and consequently produces a sort of obligation. Every rule, say they, implies a design, and the will of attaining a certain end. He, therefore, who proposes a particular end, and knows the rule by which alone he can accomplish it, finds himself under a moral necessity of observing that rule. If he did not observe it, he would act a contradictory part; he would propose the end, and neglect the only means, by which he could obtain it. There is a reasonable necessity, therefore, to prefer one manner of acting before another; and every reasonable man finds himself engaged to this, and prevented from acting in a contrary manner. In other words, he is obliged: for obligation is nothing more than a restriction of liberty produced by reason. Reason, then, independent of law, is sufficient to impose some obligation on man, and to establish a system of morality and duty.j
But, according to others, the idea of obligation necessarily implies a being, who obliges, and must be distinct from him, who is obliged. If the person, on whom the obligation is imposed, is the same as he who imposes it; he can disengage himself from it whenever he pleases: or, rather, there is no obligation. Obligation and duty depend on the intervention of a superiour, whose will is manifested by law. If we abstract from all law, and consequently from a legislator; we shall have no such thing as right, obligation, duty, or morality.k
Others, again, think it necessary to join the last two principles together, in order to render the obligation perfect.l Reason, say they, is the first rule of man, the first principle of morality, and the immediate cause of all primitive obligation. But man being necessarily dependent on his Creator, who has formed him with wisdom and design, and who, in creating him, has proposed some particular ends; the will of God is another rule of human actions, another principle of morality, obligation, and duty. On this distinction, the kinds of obligation, external and internal, are founded. These two principles must be united, in order to form a complete system of morality, really founded on the nature and state of man. As a rational being, he is subject to reason: as a creature of God, to his supreme will. Thus, reason and the divine will are perfectly reconciled, are naturally connected, and are strengthened by their junction.m
The cause of obligation is laid, by some philosophers, in utility.n Actions, they tell us, are to be estimated by their tendency to promote happiness. Whatever is expedient, is right. It is the utility, alone, of any moral rule, which constitutes its obligation.
Congenial with this principle, is another, which has received the sanction of some writers—that sociability, or the care of maintaining society properly, is the fountain of obligation and right: for to every right, there must be a corresponding obligation. From this principle the inference is drawn, that every one is born, not for himself alone, but for the whole human kind.o
Further—many philosophers derive our obligation to observe the law of nature from instinctive affections, or an innate moral sense.p This is the sense, they tell us, by which we perceive the qualities of right and wrong, and the other moral qualities in actions.
With regard, then, both to the meaning and the cause of obligation, much diversity of sentiment, much ambiguity, and much obscurity have, it appears, prevailed. It is a subject of inquiry, however, that well deserves to be investigated, explained, illustrated, and placed in its native splendour and dignity. In order to do this, it will be proper to ascertain the precise state of the question before us. It is this—what is the efficient cause of moral obligation—of the eminent distinction between right and wrong? This has been often and injudiciously blended with another question, connected indeed with it, but from which it ought to be preserved separate and distinct. That other question is—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the eminent distinction, which we have just now mentioned? The first question points to the principle of obligation: the second points to the means by which our obligation to perform a specified action, or a series of specified actions, may be deduced. The first has been called by philosophers—principium essendi—the principle of existence; the principle which constitutes obligation. The second has been called by them—principium cognoscendi—the principle of knowing it; the principle by which it may be proved or perceived. In a commonwealth, the distinction between these two questions is familiar and easy. If the question is put—what is the efficient cause of the obligation upon the citizens to obey the laws of the state?—the answer is ready—the will of those, by whose authority the laws are made. If the other question is put—how shall we, in a particular instance, or in a series of particular instances, ascertain the laws, which the citizens ought to obey?—reference is immediately made to the code of laws.
Having thus stated the question—what is the efficient cause of moral obligation?—I give it this answer—the will of God. This is the supreme law.q His just and full right of imposing laws, and our duty in obeying them, are the sources of our moral obligations. If I am asked—why do you obey the will of God? I answer—because it is my duty so to do. If I am asked again—how do you know this to be your duty? I answer again—because I am told so by my moral sense or conscience. If I am asked a third time—how do you know that you ought to do that, of which your conscience enjoins the performance? I can only say, I feel that such is my duty. Here investigation must stop; reasoning can go no farther. The science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning. Reason is confined to the investigation of unknown truths by the means of such as are known. We cannot, therefore, begin to reason, till we are furnished, otherwise than by reason, with some truths, on which we can found our arguments. Even in mathematicks, we must be provided with axioms perceived intuitively to be true, before our demonstrations can commence. Morality, like mathematicks, has its intuitive truths, without which we cannot make a single step in our reasonings upon the subject.r Such an intuitive truth is that, with which we just now closed our investigation. If a person was not possessed of the feeling before mentioned; it would not be in the power of arguments, to give him any conception of the distinction between right and wrong. These terms would be to him equally unintelligible, as the term colour to one who was born and has continued blind. But that there is, in human nature, such a moral principle, has been felt and acknowledged in all ages and nations.
Now that we have stated and answered the first question; let us proceed to the consideration of the second—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the proper distinction between right and wrong; in other words, how shall we, in particular cases, discover the will of God? We discover it by our conscience, by our reason, and by the Holy Scriptures. The law of nature and the law of revelation are both divine: they flow, though in different channels, from the same adorable source. It is, indeed, preposterous to separate them from each other. The object of both is—to discover the will of God—and both are necessary for the accomplishment of that end.
I. The power of moral perception is, indeed, a most important part of our constitution. It is an original power—a power of its own kind; and totally distinct from the ideas of utility and agreeableness. By that power, we have conceptions of merit and demerit, of duty and moral obligation. By that power, we perceive some things in human conduct to be right, and others to be wrong. We have the same reason to rely on the dictates of this faculty, as upon the determinations of our senses, or of our other natural powers. When an action is represented to us, flowing from love, humanity, gratitude, an ultimate desire of the good of others; though it happened in a country far distant, or in an age long past, we admire the lovely exhibition, and praise its author. The contrary conduct, when represented to us, raises our abhorrence and aversion. But whence this secret chain betwixt each person and mankind? If there is no moral sense, which makes benevolence appear beautiful; if all approbation be from the interest of the approver;
“What’s Hecuba to us, or we to Hecuba?”s
The mind, which reflects on itself, and is a spectator of other minds, sees and feels the soft and the harsh, the agreeable and the disagreeable, the foul and the fair, the harmonious and the dissonant, as really and truly in the affections and actions, as in any musical numbers, or the outward forms or representations of sensible things. It cannot withhold its approbation or aversion in what relates to the former, any more than in what relates to the latter, of those subjects. To deny the sense of a sublime and beautiful and of their contraries in actions and things, will appear an affectation merely to one who duly considers and traces the subject. Even he who indulges this affectation cannot avoid the discovery of those very sentiments, which he pretends not to feel. A Lucretius5 or a Hobbes cannot discard the sentiments of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others. Has a man gratitude, or resentment, or pride, or shame? If he has and avows it; he must have and acknowledge a sense of something benevolent, of something unjust, of something worthy, and of something mean. Thus, so long as we find men pleased or angry, proud or ashamed; we may appeal to the reality of the moral sense. A right and a wrong, an honourable and a dishonourable is plainly conceived. About these there may be mistakes; but this destroys not the inference, that the things are, and are universally acknowledged—that they are of nature’s impression, and by no art can be obliterated.
This sense or apprehension of right and wrong appears early, and exists in different degrees. The qualities of love, gratitude, sympathy unfold themselves, in the first stages of life, and the approbation of those qualities accompanies the first dawn of reflection. Young people, who think the least about the distant influences of actions, are, more than others, moved with moral forms. Hence that strong inclination in children to hear such stories as paint the characters and fortunes of men. Hence that joy in the prosperity of the kind and faithful, and that sorrow upon the success of the treacherous and cruel, with which we often see infant minds strongly agitated.
There is a natural beauty in figures; and is there not a beauty as natural in actions? When the eye opens upon forms, and the ear to sounds; the beautiful is seen, and harmony is heard and acknowledged. When actions are viewed and affections are discerned, the inward eye distinguishes the beautiful, the amiable, the admirable, from the despicable, the odious, and the deformed. How is it possible not to own, that as these distinctions have their foundation in nature, so this power of discerning them is natural also?
The universality of an opinion or sentiment may be evinced by the structure of languages. Languages were not invented by philosophers, to countenance or support any artificial system. They were contrived by men in general, to express common sentiments and perceptions. The inference is satisfactory, that where all languages make a distinction, there must be a similar distinction in universal opinion or sentiment. For language is the picture of human thoughts; and, from this faithful picture, we may draw certain conclusions concerning the original. Now, a universal effect must have a universal cause. No universal cause can, with propriety, be assigned for this universal opinion, except that intuitive perception of things, which is distinguished by the name of common sense.
All languages speak of a beautiful and a deformed, a right and a wrong, an agreeable and disagreeable, a good and ill, in actions, affections, and characters. All languages, therefore, suppose a moral sense, by which those qualities are perceived and distinguished.
The whole circle of the arts of imitation proves the reality of the moral sense. They suppose, in human conduct, a sublimity, a beauty, a greatness, an excellence, independent of advantage or disadvantage, profit or loss. On him, whose heart is indelicate or hard; on him, who has no admiration of what is truly noble; on him, who has no sympathetick sense of what is melting and tender, the highest beauty of the mimick arts must make indeed, but a very faint and transient impression. If we were void of a relish for moral excellence, how frigid and uninteresting would the finest descriptions of life and manners appear! How indifferent are the finest strains of harmony, to him who has not a musical ear!
The force of the moral sense is diffused through every part of life. The luxury of the table derives its principal charms from some mixture of moral enjoyments, from communicating pleasures, and from sentiments honourable and just as well as elegant—
“The feast of reason, and the flow of soul.”
The chief pleasures of history, and poetry, and eloquence, and musick, and sculpture, and painting are derived from the same source. Beside the pleasures they afford by imitation, they receive a stronger charm from something moral insinuated into the performances. The principal beauties of behaviour, and even of countenance, arise from the indication of affections or qualities morally estimable.
Never was there any of the human species above the condition of an idiot, to whom all actions appeared indifferent. All feel that a certain temper, certain affections, and certain actions produce a sentiment of approbation; and that a sentiment of disapprobation is produced by the contrary temper, affections, and actions.
This power is capable of culture and improvement by habit, and by frequent and extensive exercise. A high sense of moral excellence is approved above all other intellectual talents. This high sense of excellence is accompanied with a strong desire after it, and a keen relish for it. This desire and this relish are approved as the most amiable affections, and the highest virtues.
This moral sense, from its very nature, is intended to regulate and control all our other powers. It governs our passions as well as our actions. Other principles may solicit and allure; but the conscience assumes authority, it must be obeyed. Of this dignity and commanding nature we are immediately conscious, as we are of the power itself. It estimates what it enjoins, not merely as superiour in degree, but as superiour likewise in kind, to what is recommended by our other perceptive powers. Without this controlling faculty, endowed as we are with such a variety of senses and interfering desires, we should appear a fabrick destitute of order: but possessed of it, all our powers may be harmonious and consistent; they may all combine in one uniform and regular direction.
In short; if we had not the faculty of perceiving certain things in conduct to be right, and others to be wrong; and of perceiving our obligation to do what is right, and not to do what is wrong; we should not be moral and accountable beings.
If we be, as, I hope, I have shown we are, endowed with this faculty; there must be some things, which are immediately discerned by it to be right, and others to be wrong. There must, consequently, be in morals, as in other sciences, first principles, which derive not their evidence from any antecedent principles, but which may be said to be intuitively discerned.
Moral truths may be divided into two classes; such as are selfevident, and such as, from the selfevident ones, are deduced by reasoning. If the first be not discerned without reasoning, reasoning can never discern the last. The cases that require reasoning are few, compared with those that require none; and a man may be very honest and virtuous, who cannot reason, and who knows not what demonstration means.
If the rules of virtue were left to be discovered by reasoning, even by demonstrative reasoning, unhappy would be the condition of the far greater part of men, who have not the means of cultivating the power of reasoning to any high degree. As virtue is the business of all men, the first principles of it are written on their hearts, in characters so legible, that no man can pretend ignorance of them, or of his obligation to practise them. Reason, even with experience, is too often overpowered by passion; to restrain whose impetuosity, nothing less is requisite than the vigorous and commanding principle of duty.
II. The first principles of morals, into which all moral argumentation may be resolved, are discovered in a manner more analogous to the perceptions of sense than to the conclusions of reasoning. In morality, however, as well as in other sciences, reason is usefully introduced, and performs many important services. In many instances she regulates our belief; and in many instances she regulates our conduct. She determines the proper means to any end; and she decides the preference of one end over another. She may exhibit an object to the mind, though the perception which the mind has, when once the object is exhibited, may properly belong to a sense. She may be necessary to ascertain the circumstances and determine the motives to an action; though it be the moral sense that perceives the action to be either virtuous or vicious, after its motive and its circumstances have been discovered. She discerns the tendencies of the several senses, affections, and actions, and the comparative value of objects and gratifications. She judges concerning subordinate ends; but concerning ultimate ends she is not employed. These we prosecute by some immediate determination of the mind, which, in the order of action, is prior to all reasoning; for no opinion or judgment can move to action, where there is not a previous desire of some end.—This power of comparing the several enjoyments, of which our nature is susceptible, in order to discover which are most important to our happiness, is of the highest consequence and necessity to corroborate our moral faculty, and to preserve our affections in just rank and regular order.
A magistrate knows that it is his duty to promote the good of the commonwealth, which has intrusted him with authority. But whether one particular plan or another particular plan of conduct in office, may best promote the good of the commonwealth, may, in many cases, be doubtful. His conscience or moral sense determines the end, which he ought to pursue; and he has intuitive evidence that his end is good: but the means of attaining this end must be determined by reason. To select and ascertain those means, is often a matter of very considerable difficulty. Doubts may arise; opposite interests may occur; and a preference must be given to one side from a small over-balance, and from very nice views. This is particularly the case in questions with regard to justice. If every single instance of justice, like every single instance of benevolence, were pleasing and useful to society, the case would be more simple, and would be seldom liable to great controversy. But as single instances of justice are often pernicious in their first and immediate tendency; and as the advantage to society results only from the observance of the general rule, and from the concurrence and combination of several persons in the same equitable conduct; the case here becomes more intricate and involved. The various circumstances of society, the various consequences of any practice, the various interests which may be proposed, are all, on many occasions, doubtful, and subject to much discussion and inquiry. The design of municipal law (for let us still, from every direction, open a view to our principal object) the design of municipal law is to fix all the questions which regard justice. A very accurate reason or judgment is often requisite, to give the true determination amidst intricate doubts, arising from obscure or opposite utilities.
Thus, though good and ill, right and wrong are ultimately perceived by the moral sense, yet reason assists its operations, and, in many instances, strengthens and extends its influence. We may argue concerning propriety of conduct: just reasonings on the subject will establish principles for judging of what deserves praise: but, at the same time, these reasonings must always, in the last resort, appeal to the moral sense.
Farther; reason serves to illustrate, to prove, to extend, to apply what our moral sense has already suggested to us, concerning just and unjust, proper and improper, right and wrong. A father feels that paternal tenderness is refined and confirmed, by reflecting how consonant that feeling is to the relation between a parent and his child; how conducive it is to the happiness, not only of a single family, but, in its extension, to that of all mankind. We feel the beauty and excellence of virtue; but this sense is strengthened and improved by the lessons, which reason gives us concerning the foundations, the motives, the relations, the particular and the universal advantages flowing from this virtue, which, at first sight, appeared so beautiful.
Taste is a faculty, common, in some degree, to all men. But study, attention, comparison operate most powerfully towards its refinement. In the same manner, reason contributes to ascertain the exactness, and to discover and correct the mistakes, of the moral sense. A prejudice of education may be misapprehended for a determination of morality. ’Tis reason’s province to compare and discriminate.
Reason performs an excellent service to the moral sense in another respect. It considers the relations of actions, and traces them to the remotest consequences. We often see men, with the most honest hearts and most pure intentions, embarrassed and puzzled, when a case, delicate and complicated, comes before them. They feel what is right; they are unshaken in their general principles; but they are unaccustomed to pursue them through their different ramifications, to make the necessary distinctions and exceptions, or to modify them according to the circumstances of time and place. ’Tis the business of reason to discharge this duty; and it will discharge it the better in proportion to the care which has been employed in exercising and improving it.
The existence of the moral sense has been denied by some philosophers of high fame: its authority has been attacked by others: the certainty and uniformity of its decisions have been arraigned by a third class.t We are told, that, without education, we should have been in a state of perfect indifference as to virtue and vice; that an education, opposite to that which we have received, would have taught us to regard as virtue that which we now dislike as vice, and to despise as vice that which we now esteem as virtue. In support of these observations, it is farther said, that moral sentiment is different in different countries, in different ages, and under different forms of government and religion; in a word, that it is as much the effect of custom, fashion, and artifice, as our taste in dress, furniture, and the modes of conversation. Facts and narratives have been assembled and accumulated, to evince the great diversity and even contrariety that subsists concerning moral opinions. And it has been gravely asked, whether the wild boy, who was caught in the woods of Hanover, would feel a sentiment of disapprobation upon being told of the conduct of a parricide. An investigation of those facts and narratives cannot find a place in these lectures; though the time bestowed on it might be well employed. It may, however, be proper to observe, that it is but candid to consider human nature in her improved, and not in her most rude or depraved forms. “The good experienced man,” says Aristotle, “is the last measure of all things.”u To ascertain moral principles, we appeal not to the common sense of savages, but of men in their most perfect state.
Epicurus, as well as some modern advocates of the same philosophy, seem to have taken their estimates of human nature from its meanest and most degrading exhibitions; but the noblest and most respectable philosophers of antiquity have chosen, for a much wiser and better purpose, to view it on the brightest and most advantageous side. “It is impossible,” says the incomparable Addison,v6 “to read a passage in Plato or Tully, and a thousand other ancient moralists, without being a greater and a better man for it. On the contrary, I could never read some modish modern authors, without being, for some time, out of humour with myself, and at every thing about me. Their business is to depreciate human nature, and consider it under its worst appearances. They give mean interpretation and base motives to the worthiest actions—in short, they endeavour to make no distinction between man and man, or between the species of men and that of brutes.” True it is, that some men and some nations are savage and brutish; but is that a reason why their manners and their practices should be generally and reproachfully charged to the account of human nature? It may, perhaps, be somewhat to our purpose to observe, that in many of these representations, the picture, if compared with the original, will be found to be overcharged. For, in truth, between mankind, considered even in their rudest state, and the mutum et turpe pecus,7 a very wide difference will be easily discovered. In the most uninformed savages, we find the communes notitiae, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. These same savages have in them the seeds of the logician, the man of taste, the orator, the statesman, the man of virtue, and the saint. These seeds are planted in their minds by nature, though, for want of culture and exercise, they lie unnoticed, and are hardly perceived by themselves or by others. Besides, some nations that have been supposed stupid and barbarous by nature, have, upon fuller acquaintance with their history, been found to have been rendered barbarous and depraved by institution. When, by the power of some leading members, erroneous laws are once established, and it has become the interest of subordinate tyrants to support a corrupt system; errour and iniquity become sacred. Under such a system, the multitude are fettered by the prejudices of education, and awed by the dread of power, from the free exercise of their reason. These principles will account for the many absurd and execrable tenets and practices with regard to government, morals, and religion, which have been invented and established in opposition to the unbiassed sentiments, and in derogation of the natural rights of mankind. But, after making all the exceptions and abatements, of which these facts and narratives, if admitted in their fullest extent, would justify the claim, still it cannot be denied, but is even acknowledged, that some sorts of actions command and receive the esteem of mankind more than others; and that the approbation of them is general, though not universal. It will certainly be sufficient for our purpose to observe, that the dictates of reason are neither more general, nor more uniform, nor more certain, nor more commanding, than the dictates of the moral sense. Nay, farther; perhaps, upon inquiry, we shall find, that those obliquities, extravagancies, and inconsistencies of conduct, that are produced as proofs of the nonexistence or inutility of the moral sense, are, in fact, chargeable to that faculty, which is meant to be substituted in its place. We shall find that men always approve upon an opinion—true or false, but still an opinion—that the actions approved have the qualities and tendencies, which are the proper objects of approbation. They suppose that such actions will promote their own interest; or will be conducive to the publick good; or are required by the Deity; when, in truth, they have all the contrary properties—may be forbidden by the Deity, and may be detrimental both to publick and to private good. But when all this happens, to what cause is it to be traced? Does it prove the nonexistence of a moral sense, or does it prove, in such instances, the weakness or perversion of reason? The just solution is, that, in such instances, it is our reason, which presents false appearances to our moral sense.
It is with much reluctance, that the power of our instinctive or intuitive faculties is acknowledged by some philosophers. That the brutes are governed by instinct, but that man is governed by reason, is their favourite position. But fortunately for man, this position is not founded on truth. Our instincts, as well as our rational powers, are far superiour, both in number and in dignity, to those, which the brutes enjoy; and it were well for us, on many occasions, if we laid our reasoning systems aside, and were more attentive in observing the genuine impulses of nature. In this enlarged and elevated meaning, the sentiment of Popew receives a double portion of force and sublimity.
This sentiment is not dictated merely in the fervid glow of enraptured poetry; it is affirmed by the deliberate judgment of calm, sedate philosophy. Our instincts are no other than the oracles of eternal wisdom; our conscience, in particular, is the voice of God within us: it teaches, it commands, it punishes, it rewards. The testimony of a good conscience is the purest and the noblest of human enjoyments.
It will be proper to examine a little more minutely the opinions of those, who allege reason to be the sole directress of human conduct. Reason may, indeed, instruct us in the pernicious or useful tendency of qualities and actions: but reason alone is not sufficient to produce any moral approbation or blame. Utility is only a tendency to a certain end; and if the end be totally indifferent to us, we shall feel the same indifference towards the means. It is requisite that sentiment should intervene, in order to give a preference to the useful above the pernicious tendencies.
Reason judges either of relations or of matters of fact. Let us consider some particular virtue or vice under both views. Let us take the instance of ingratitude. This has place, when good will is expressed and good offices are performed on one side, and ill will or indifference is shown on the other. The first question is—what is that matter of fact, which is here called a vice? Indifference or ill will. But ill will is not always, nor in all circumstances a crime: and indifference may, on some occasions, be the result of the most philosophick fortitude. The vice of ingratitude, then, consists not in matter of fact.
Let us next inquire into the relations, which reason can discover, among the materials, of which ingratitude is composed. She discovers good will and good offices on one side, and ill will or indifference on the other. This is the relation of contrariety. Does ingratitude consist in this? To which side of the contrary relation is it to be placed? For this relation of contrariety is formed as much by good will and good offices, as by ill will or indifference. And yet the former deserves praise as much as the latter deserves blame.
If it shall be said, that the morality of an action does not consist in the relation of its different parts to one another, but in the relation of the whole actions to the rule; and that actions are denominated good or ill, as they agree or disagree with that rule; another question occurs—What is this rule of right? by what is it discovered or determined? By reason, it is said. How does reason discover or determine this rule? It must be by examining facts or the relations of things. But by the analysis which has been given of the particular instance under our consideration, it has appeared that the vice of ingratitude consists neither in the matter of fact, nor in the relation of the parts, of which the fact is composed. Objects in the animal world, nay inanimate objects, may have to each other all the same relations, which we observe in moral agents; but such objects are never supposed to be susceptible of merit or demerit, of virtue or vice.
The ultimate ends of human actions, can never, in any case, be accounted for by reason. They recommend themselves entirely to the sentiments and affections of men, without dependence on the intellectual faculties. Why do you take exercise? Because you desire health. Why do you desire health? Because sickness is painful. Why do you hate pain? No answer is heard. Can one be given? No. This is an ultimate end, and is not referred to any farther object.
To the second question, you may, perhaps, answer, that you desire health, because it is necessary for your improvement in your profession. Why are you anxious to make this improvement? You may, perhaps, answer again, because you wish to get money by it. Why do you wish to get money? Because, among other reasons, it is the instrument of pleasure. But why do you love pleasure? Can a reason be given for loving pleasure, any more than for hating pain? They are both ultimate objects. ’Tis impossible there can be a progress in infinitum; and that one thing can always be a reason, why another is hated or desired. Something must be hateful or desirable on its own account, and because of its immediate agreement or disagreement with human sentiment and affection.
Virtue and vice are ends; and are hateful or desirable on their own account. It is requisite, therefore, that, there should be some sentiment, which they touch—some internal taste or sense, which distinguishes moral good and evil, and which embraces one, and rejects the other. Thus are the offices of reason and of the moral sense at last ascertained. The former conveys the knowledge of truth and falsehood: the latter, the sentiment of beauty and deformity, of vice and virtue. The standard of one, founded on the nature of things, is eternal and inflexible. The standard of the other is ultimately derived from that supreme will, which bestowed on us our peculiar nature, and arranged the several classes and orders of existence. In this manner, we return to the great principle, from which we set out. It is necessary that reason should be fortified by the moral sense: without the moral sense, a man may be prudent, but he cannot be virtuous.
Philosophers have degraded our senses below their real importance. They represent them as powers, by which we have sensations and ideas only. But this is not the whole of their office; they judge as well as inform. Not confined to the mere office of conveying impressions, they are exalted to the function of judging of the nature and evidence of the impressions they convey. If this be admitted, our moral faculty may, without impropriety, be called the moral sense. Its testimony, like that of the external senses, is the immediate testimony of nature, and on it we have the same reason to rely. In its dignity, it is, without doubt, far superiour to every other power of the mind.
The moral sense, like all our other powers, comes to maturity by insensible degrees. It is peculiar to human nature. It is both intellectual and active. It is evidently intended, by nature, to be the immediate guide and director of our conduct, after we arrive at the years of understanding.
III. Reason and conscience can do much; but still they stand in need of support and assistance. They are useful and excellent monitors; but, at some times, their admonitions are not sufficiently clear; at other times, they are not sufficiently powerful; at all times, their influence is not sufficiently extensive. Great and sublime truths, indeed, would appear to a few; but the world, at large, would be dark and ignorant. The mass of mankind would resemble a chaos, in which a few sparks, that would diffuse a glimmering light, would serve only to show, in a more striking manner, the thick darkness with which they are surrounded. Their weakness is strengthened, their darkness is illuminated, their influence is enlarged by that heaven-descended science, which has brought life and immortality to light. In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws, by a revelation given to us immediately and directly from himself. This revelation is contained in the holy scriptures. The moral precepts delivered in the sacred oracles form a part of the law of nature, are of the same origin, and of the same obligation, operating universally and perpetually.
On some important subjects, those in particular, which relate to the Deity, to Providence, and to a future state, our natural knowledge is greatly improved, refined, and exalted by that which is revealed. On these subjects, one who has had the advantage of a common education in a christian country, knows more, and with more certainty, than was known by the wisest of the ancient philosophers.
One superiour advantage the precepts delivered in the sacred oracles clearly possess. They are, of all, the most explicit and the most certain. A publick minister, judging from what he knows of the interests, views, and designs of the state, which he represents, may take his resolutions and measures, in many cases, with confidence and safety; and may presume, with great probability, how the state itself would act. But if, besides this general knowledge, and these presumptions highly probable, he was furnished also with particular instructions for the regulation of his conduct; would he not naturally observe and govern himself by both rules? In cases, where his instructions are clear and positive, there would be an end of all farther deliberation. In other cases, where his instructions are silent, he would supply them by his general knowledge, and by the information, which he could collect from other quarters, concerning the counsels and systems of the commonwealth. Thus it is with regard to reason, conscience, and the holy scriptures. Where the latter give instructions, those instructions are supereminently authentick. But whoever expects to find, in them, particular directions for every moral doubt which arises, expects more than he will find. They generally presuppose a knowledge of the principles of morality; and are employed not so much in teaching new rules on this subject, as in enforcing the practice of those already known, by a greater certainty, and by new sanctions. They present the warmest recommendations and the strongest inducements in favour of virtue: they exhibit the most powerful dissuasives from vice. But the origin, the nature, and the extent of the several rights and duties they do not explain; nor do they specify in what instances one right or duty is entitled to preference over another. They are addressed to rational and moral agents, capable of previously knowing the rights of men, and the tendencies of actions; of approving what is good, and of disapproving what is evil.
These considerations show, that the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense. The information with regard to our duties and obligations, drawn from these different sources, ought not to run in unconnected and diminished channels: it should flow in one united stream, which, by its combined force and just direction, will impel us uniformly and effectually towards our greatest good.
We have traced, with some minuteness, the efficient principle of obligation, and the several means, by which our duty may be known. It will be proper to turn our attention back to the opinions that have been held, in philosophy and jurisprudence, concerning this subject. On a review of them, we shall now find that, in general, they are defective rather than erroneous; that they have fallen short of the mark, rather than deviated from the proper course.
The fitness of things denotes their fitness to produce our happiness: their nature means that actual constitution of the world, by which some things produce happiness, and others misery. Reason is one of the means, by which we discern between those things, which produce the former, and those things, which produce the latter. The moral sense feels and operates to promote the same essential discriminations. Whatever promotes the greatest happiness of the whole, is congenial to the principles of utility and sociability: and whatever unites in it all the foregoing properties, must be agreeable to the will of God: for, as has been said once, and as ought to be said again, his will is graciously comprised in this one paternal precept—Let man pursue his happiness and perfection.
The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature’s laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.
The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.
This law, or right reason, as Cicerox calls it, is thus beautifully described by that eloquent philosopher. “It is, indeed,” says he, “a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind.”
“Man never is,” says the poet, in a seeming tone of complaint, “but always to be blest.” The sentiment would certainly be more consolatory, and, I think, it would be likewise more just, if we were to say—man ever is; for always to be blest. That we should have more and better things before us, than all that we have yet acquired or enjoyed, is unquestionably a most desirable state. The reflection on this circumstance, far from diminishing our sense or the importance of our present attainments and advantages, produces the contrary effects. The present is gilded by the prospect of the future.
When Alexander had conquered a world, and had nothing left to conquer; what did he do? He sat down and wept. A well directed ambition that has conquered worlds, is exempted from the fate of that of Alexander the Great: it still sees before it more and better worlds as the objects of conquest.
It is the glorious destiny of man to be always progressive. Forgetting those things that are behind, it is his duty, and it is his happiness, to press on towards those that are before. In the order of Providence, as has been observed on another occasion, the progress of societies towards perfection resembles that of an individual. This progress has hitherto been but slow: by many unpropitious events, it has often been interrupted: but may we not indulge the pleasing expectation, that, in future, it will be accelerated; and will meet with fewer and less considerable interruptions.
Many circumstances seem—at least to a mind anxious to see it, and apt to believe what it is anxious to see—many circumstances seem to indicate the opening of such a glorious prospect. The principles and the practice of liberty are gaining ground, in more than one section of the world. Where liberty prevails, the arts and sciences lift up their heads and flourish. Where the arts and sciences flourish, political and moral improvements will likewise be made. All will receive from each, and each will receive from all, mutual support and assistance: mutually supported and assisted, all may be carried to a degree of perfection hitherto unknown; perhaps, hitherto not believed.
“Men,” says the sagacious Hooker, “if we view them in their spring, are, at the first, without understanding or knowledge at all. Nevertheless, from this utter vacuity, they grow by degrees, till they become at length to be even as the angels themselves are. That which agreeth to the one now, the other shall attain to in the end: they are not so far disjoined and severed, but that they come at length to meet.”y
Our progress in virtue should certainly bear a just proportion to our progress in knowledge. Morals are undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as they are. Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. Indeed, the same immutable principles will direct this progression. In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the cotemporary degree, but will be calculated to produce, in future, a still higher degree of perfection.
A delineation of the laws of nature, has been often attempted. Books, under the appellations of institutes and systems of that law, have been often published. From what has been said concerning it, the most finished performances executed by human hands cannot be perfect. But most of them have been rude and imperfect to a very unnecessary, some, to a shameful degree.
A more perfect work than has yet appeared upon this great subject, would be a most valuable present to mankind. Even the most general outlines of it cannot, at least in these lectures, be expected from me.
[a. ]1. Burl. 82.
[b. ]1. Burl. 83.
[c. ]Id. 83.
[d. ]Id. 83. 87.
[e. ]1. Burl. 85. 86.
[f. ]1. Burl. 86. 87.
[1. ]Epicurus (341–270 bc) was a Greek philosopher who founded the school of thought known as Epicureanism.
[g. ]Epicurus re tollit, oratione relinquit deos. Deinde, si maxime talis est deus, ut nulla gratia, nulla hominum caritate teneatur: valeat. Quid enim dicam, propitius sit?2 Cic. de Nat. Deo. l. 1. c. 44.
[h. ]1. Ruth. 9.
[i. ]Gro. 10.
[j. ]Hein. 63. 1. Burl. 207. 210. 212. Puff. 17. b. 1. c. 2. s. 6.
[k. ]1. Burl. 210. 212. 202. Hein. 10.
[l. ]1. Ruth. 9.
[m. ]1. Burl. 214. 216. 219. 220.
[n. ]1. Paley 82. Hein. 51.
[o. ]Hein. 50. Gro. Prel. 17. Puff. 139. b. 2. c. 3. s. 15.
[p. ]1. Ruth. 9..
[r. ]Quae est gens, aut quod genus hominum, quod non habeat sine doctrina anticipationem quandam, id est, anticeptam animo rei quandam informationem, sine qua nec intelligi quidquam, nec quaeri, nec disputari potest.4 Cic. de nat. Deor. l. 1. c. 16.
[s. ]Hamlet (paraphase).
[5. ]Titus Lucretius Carus (99–55 bc) was a Roman poet and Epicurean philosopher who wrote De Rerum Natura (On the Nature of Things).
[t. ]1. Paley 12–24. Kaims Pr. Eq. 8.
[u. ]1. Hutch. 237. 121.
[v. ]Tatler No. 103.
[6. ]Joseph Addison (1672–1719) was an English writer and politician who founded The Spectator.
[7. ]Dumb and ugly herd.
[w. ]Ess. on Man. Ep. 3. v. 99.
[x. ]De Rep. l. 3.
[y. ]Hooker, b. 1. s. 6. p. 8.
[g. ]Epicurus re tollit, oratione relinquit deos. Deinde, si maxime talis est deus, ut nulla gratia, nulla hominum caritate teneatur: valeat. Quid enim dicam, propitius sit?2 Cic. de Nat. Deo. l. 1. c. 44.
[r. ]Quae est gens, aut quod genus hominum, quod non habeat sine doctrina anticipationem quandam, id est, anticeptam animo rei quandam informationem, sine qua nec intelligi quidquam, nec quaeri, nec disputari potest.4 Cic. de nat. Deor. l. 1. c. 16.
[2. ]Epicurus in fact takes away the gods, though he professes to leave them. In fine, if god is precisely such as is held by no sense of gratitude, by no love of mankind, then goodbye to him! for why should I say “may he be gracious toward me”?.
[3. ]That first and final law, they used to say, is the mind of God, who forces or prohibits everything by reason.
[4. ]What nation, what species of man is there which does not have, without teaching, some sort of foreknowledge, that is, a certain image of the thing conceived beforehand by the mind, without which nothing can be understood, investigated or discussed?.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: CHAPTER VIII.: Of Man, as a Member of a Confederation.
Accessed from oll.libertyfund.org/title/2072/156469 on 2008-08-21
The Introduction, Collector’s Foreword, Collector’s Acknowledgments, Annotations, Bibliographical Essay are the copyright of Liberty Fund 2007. The Bibliographical Glossary in volume 2 is reprinted by permission of the copyright holders the President and Fellows of Harvard College 1967.
A number of states or societies may associate or confederate together for their mutual security and advantage. In some respects, such confederacies are to be considered as forming only one nation: in other respects, they are to be considered as still retaining their separate political capacities, characters, rights, and powers. Associations of this kind have made their appearance but seldom on the great theatre of human affairs; and when they have appeared, the part they have acted has generally been but a short one; and even that short part has, in most instances, been defaced, or mutilated, or rendered obscure by the effect of all-corroding time. The appearance, however, of personages, so peculiarly interesting to the United States, well deserves to be marked, to be traced, to be distinguished, with the most sedulous precision and exactness.
The first association of this kind, of which we have any information from history, is that of the Amphyctionick Council, so called from Amphyction, by whom it was instituted. In the time of this wise and patriotick prince, the condition of Greece demanded his most serious and deep reflection. That country was divided into a great number of small independent sovereignties. That division was likely to occasion controversies, and produce ruinous intestine wars. Weakness and confusion, the inseparable concomitants of such wars, might invite the attacks of the barbarous nations, by whom Greece was surrounded. Her destruction, total and irretrievable, might prove the necessary consequence.
To prevent calamities, so probable and so great, Amphyction meditated and formed the plan of uniting all the different states of Greece in one common bond, as well as in one common interest; that, availing themselves of the advantages and strength acquired by this union, they might labour together in maintaining their internal peace and security, and in rendering themselves respectable, and, if necessary, formidable to the neighbouring nations. With this view, and on these principles, he formed a league among twelve Grecian cities, whose deputies were to meet twice a year at Thermopylae, where Amphyction reigned.a Difference of times and circumstances produced many successive alterations in this assembly; but the general intention and invariable object of all its modellers and directers was, to form a complete representation of all Greece.b
Each city sent two deputies; and had, of consequence, two votes in their deliberations, without distinction or preeminence.
We should consider the Council of the Amphyctions as the Congress of the United States of Greece. The delegates, who composed that august assembly, represented the body of the nation; and were invested with full power to deliberate and resolve upon whatever appeared to them to be most conducive to the publick prosperity.c Besides those laws, by which each particular city was governed, others were enacted by the Council of Amphyctions, of general force and obligation on all. Those were called Amphyctionick laws. All contests between the Grecian states and cities came under the particular cognizance of the Amphyctions. To their tribunal, an appeal also lay in all private controversies.d To the same tribunal, individuals were amenable for their publick crimes.e Their authority extended to the raising of forces, and to compel the obstinate to submit to the execution of their decrees. The three religious wars, undertaken by the order of the Amphyctions, are striking instances of the extent of their power.f
Among the Grecians, it was esteemed a high honour to have a right to send delegates to this kind of states general. The least mark of infidelity to their country was sufficient to prevent their admission, or to procure their expulsion. The Lacedemonians, however important, and the Phocians were, for some time, excluded; and could not obtain a readmission, till, by unequivocal proofs of service and attachment to the publick, they had made reparation for the fault, which they had committed.
The effects, produced by the Council of the Amphyctions, fully answered the most sanguine expectations of the prince, by whom it was instituted. From the moment of its establishment, the interests of their country became the common concern of all the people of Greece. The different states, of which the union was composed, formed only one and the same republick: and this union it was, which made the Greeks so formidable afterwards to the barbarians.g To the Amphyctions we may ascribe the salvation of Greece from the invasion of Xerxes. It was by means of this association, that she performed such wonderful actions, and supported, for so long a time, the character of the pride of nations.
Amphyction ought to be esteemed one of the greatest men, that Greece ever produced; and the establishment of the Council of the Amphyctions should be admired, as a great master-piece in human politicks.
While the generous principles, on which the Council of the Amphyctions was formed, continued to preserve their due vigour, that illustrious body was respectable, august, and powerful. But when Greece herself began to degenerate, her representative body was contaminated with the general corruption. The decline of this council we may date particularly from the time, when Philip of Macedon, artful and intriguing, practised on its venal members by bribes, and succeeded in having his kingdom annexed to the Hellenick Body. It continued, however, for ages after the destruction of Grecian liberty, to assemble, and to exercise some remains of its authority.h
The next confederacy, which claims our attention, is that of the Lycians. In this republick, the just rights of suffrage were observed with great accuracy. It was an association of twenty three towns. These were arranged into three classes, in proportion to their strength. In the first class, six states were included. The numbers of which the second and third classes were composed, are uncertain. Every city had its own magistrates and government, and managed its own internal affairs. But all, uniting together, formed only one common republick, and had one common council. In that council, they deliberated and resolved concerning war, concerning peace, concerning alliances; in a word, concerning the general interests and welfare of the Lycians. The towns of the first class had three votes; the towns of the second class had two votes; and the towns of the third class had one vote, in the common council. In the same proportion, they contributed to the publick expenses, and appointed the publick magistrates of the union.
This republick was celebrated for its moderation and justice. Respected and unimpaired, it continued till the Romans, by their extending conquests, overpowered every thing in Asia.
Concerning the Lycians, one observation is made, which merits our particular notice. They observed customs more than written laws.i
“Was I to give,” says the celebrated Montesquieu,j “the model of an excellent confederate republick, I would select that of Lycia.” The happy experience, however, of the United States, has evinced, that, even upon that model, immense improvements have been made.
The Achaean League1 comes now in review before us. The cities composing it retained, like those of Lycia, the government of their interiour police, and appointed their own magistrates and publick officers. The senate, in which they were represented, had the sole and exclusive right of declaring war and making peace; of receiving and sending ambassadours; of entering into treaties, and forming alliances. It appointed a chief magistrate, called a pretor, who commanded their armies, and who, assisted by a council of ten of the senators, not only administered the government during the recess of the senate; but, when the senate was assembled, had also a large share in its deliberations. At first, there were two pretors; but experience taught them to prefer one.
In Achaia, all the cities had the same money, the same weights and measures, the same customs and laws. The popular government, we are told, was not so tempestuous in the cities of Achaia, as in some of the other cities of Greece; because, in Achaia, it was tempered by the authority and laws of the confederacy. Indeed it is unquestionable, that, in this confederacy, there was much more moderation and justice, than was to be found in any of the cities exercising singly all the prerogatives of sovereignty.
When Lacedaemon2 was admitted into the Achaean League; she was obliged to abolish the institutions of Lycurgus, and to adopt the laws of the Achaeans. But Lacedaemon had been long a member of the Amphyctionick Council; and, during all the time, she had been left in the full possession of her own government and laws. This circumstance discloses a very important difference between those two confederate systems.k
The Germanick Body has been generally considered as a confederate state. From the feudal system, which has itself many of the important features of a confederacy, the federal system, which constitutes the empire of Germany, has grown. Its powers are vested in a diet, representing the component members of the confederacy; in the emperour, who is the executive magistrate, with a negative on the decrees of the diet; and in the imperial chamber and aulick council, two tribunals possessed of supreme jurisdiction in controversies, which concern the empire, or happen among its members.
The diet possesses the power of legislation for the empire, of making peace and war, contracting alliances, assessing quotas of troops and money, constructing fortresses, regulating coin, admitting new members, and subjecting disobedient members to the ban of the empire; by which the party is degraded from his sovereign rights, and his possessions are forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperour and diet; from altering the value of money; from doing injustice to one another; and from affording assistance or retreat to the disturbers of the publick peace. The ban is denounced against such as shall violate any of these restrictions.
The members of the diet, as such, are subject, in all cases, to be judged by the emperour and diet; and, in their private capacities, by the aulick council and imperial chamber.
The prerogatives of the emperour are numerous. The most important of them are—his exclusive right to make propositions to the diet, to negative its resolutions, to name ambassadours, to confer dignities and titles, to fill vacant electorates, to found universities, to grant privileges not injurious to the states of the empire, to receive and apply the publick revenues, and generally to watch over the publick safety. In certain cases, the electors form a council to him. In the character of emperour, he possesses no territory within the empire; and receives no revenue for his support.
The fundamental principle, on which this confederacy rests, is—that the empire is a community of sovereigns—that the diet is a representation of sovereigns—and that the laws are addressed to sovereigns.m The princes and free states of Germany may treat with foreign powers.n
The Swiss Cantons are frequently mentioned as forming a confederacy; but they are improperly mentioned in that character. They are no more than states connected together by a close and perpetual alliance. They have no common treasury; they have no national troops, even in war; they have no common coin; they have no common tribunal; they have no common characteristick of sovereignty.
When a dispute happens among the cantons, there is a provision, that the parties to that dispute shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence. This sentence all the cantons are bound to enforce.o
The United Netherlands are generally represented as a confederacy. If the term can, with propriety, be applied to them; they are a confederacy of republicks, or rather of aristocracies, of a very remarkable texture.
The union is composed of seven coequal and sovereign states or provinces;p and each state or province is a composition of equal and independent cities. In all important cases, not only the states, but the cities, must be unanimous.
The sovereignty of the union is represented by the states-general, consisting of deputies appointed by the provinces. Some hold their seats for life; some, for six years; some, for three years, some, for one year; some, during pleasure.
The states-general have authority to enter into treaties and alliances; to make war and peace; to raise armies and equip fleets; to ascertain quotas, and demand contributions. In all these cases, however, unanimity and the sanction of their constituents are requisite. They have authority to appoint and receive ambassadours; to execute treaties and alliances already formed; to provide for the collection of duties on imports and exports; to regulate the mint, with a saving to the provincial rights; to govern, as sovereigns, the dependent territories.
The particular states or provinces are restrained, unless with the general consent, from entering into foreign treaties; from establishing imposts injurious to others; and from charging higher duties upon their neighbours than upon their own citizens.
A council of state; a chamber of accounts; and five colleges of admiralty, aid and fortify the federal administration.
The executive magistrate of the union is the stadtholder, who is now an hereditary prince. As stadtholder,4 he is invested with very considerable prerogatives. In his civil capacity, he has power to settle disputes between the provinces; to assist at the deliberations of the states-general; to give audiences to foreign ambassadours; and to keep agents, for his particular affairs, at foreign courts. In his military capacity, he commands the federal troops; provides for garrisons; regulates military affairs; disposes of military appointments, and of the government of fortified towns. In his marine capacity, he is admiral, and superintends every thing relative to naval affairs; presides in the admiralties in person or by proxy; appoints naval officers; and establishes councils of war, whose sentences are not executed till he approve them. He is stadtholder in the several provinces, as well as in the union; and, in this provincial character, he has the appointment of town magistrates; executes provincial decrees; and presides, when he pleases, in the provincial tribunals. Throughout all, he has the power of pardon.q
After the independence of the United Netherlands was recognised by Spain, the individual states began to pay very little regard to the decrees of the states-general: even particular towns and lordships seemed desirous of maintaining entire independence on the states of the provinces, within which they were situated. The Dutch government, which had greatly relaxed, and was even threatened with dissolution, recovered its tone through the dangers, to which the United Provinces were exposed by the war of thirty years, which was terminated by the peace of Westphalia. Since that time, dissensions among the Dutch have prevailed, or have been composed, according as they have dreaded or trusted their ambitious neighbours.r
In the Saxon Heptarchy,5 a confederacy certainly existed; though, perhaps, a confederacy weak, defective, and interrupted; and from all the confederated states a wittenagemote6 was frequently called.s This general superintending body was sometimes called a pananglicum.
Among the ancient Germans, the genius of confederacy pervaded the whole structure of society. They sojourned in huts, which served them as strong holds, to which they carried their property in time of danger. These strong holds or pagi, as the Greeks and Romans called them, were the natural resort of the tribes in their neighbourhood, and seem to have been the embryos of the little states, with which ancient Europe so much abounded. A point of union being thus formed among a few tribes, it was natural that the warriours should frequently assemble at that point. In those assemblies, a king, or common leader in war, and an executive magistrate in peace, was chosen.t “Eliguntur,” says Tacitus,u “in iisdem consiliis principes, qui jura per pagos vicosque reddunt.”7
Though, in general, each pagus acknowledged no superiour, yet particular circumstances of society induced numbers of them to confederate; and, when wars happened, a common leader of the confederacy was chosen of course. When a confederacy of neighbouring pagi had subsisted for a considerable time, a sentiment of national union and of national character began, at last, to appear and operate. The common leader, occasionally chosen for a war, was so often elected, that he became a king, like the chief of a pagus; that he was a princeps regionis,8 with several principes pagorum9 in such a subordination under him, as the chiefs of vici, or of primary tribes, were originally held under the chiefs of the pagi.
These combined associates became, again, the members of a greater and less consolidated confederacy. According to Tacitus, the Suevi, one of the greatest communities of Germany, were not comprehended in a single people, but were divided into several nations, all bearing distinct names, though they were all included under the common appellation of Suevi. The Semnones, a single nation, though, indeed, the most noble and the most ancient nation, comprehended under this great confederacy, inhabited no fewer than a hundred pagi. Over the largest portion of Germany the confederacy of the Suevi extended.v Thus the Semnones, though but a single member of the great confederacy of the Suevi, were themselves, considered with regard to the pagi which they inhabited, a very considerable national confederacy.
Of a confederacy, whether supreme or subordinate, every member possessed, within itself, legislative, executive, and judicial powers, similar, but inferiour to those exercised by the confederacy itself. In this way the form of society was nearly indestructible.w The bonds of association were in just, though inverse, number and proportion to the extent and greatness of the parts associated.
Let us conclude this general view of confederacies with an account of one, which was established, where we should little expect to find it, in Iceland. That obscure and sequestered region—but what place or what people are there, from whence instruction may not be drawn—was peopled by a series of colonies from Norway. These colonists relinquished their country, when it was conquered by Harold10 with the beautiful hair, in the year eight hundred and seventy eight. In their new settlements, they formed small communities with elective chiefs. These, by degrees, combined together, and held assemblies, under a common leader, in each of the four great provinces, into which the ridges of Mount Hecla divide the island. At last, these four provinces likewise confederated, and formed, in the year nine hundred and twenty eight, a republick, under one chief magistrate.
The whole country was arranged into regular divisions, called provinces, hundreds, and reeps. The magistrates held their offices for life. Diets were held for the districts; and an alting, or great annual assembly, was held for the nation. In that assembly, besides the arrangement of political matters, appeals were received from the provincial courts, and rejudged, in its presence, and under its inspection, by the former judges. The duty of the lagman, or chief of the nation, was to carry into execution what the alting ordered and decreed. There was a succession of thirty eight lagmans, which continued till the year one thousand two hundred and sixty two, when the republick was destroyed by the Danes.
On a subject of such magnitude, not only that which has been done, but also that which has been proposed to be done, well deserves attention and examination. I allude to the grand plan of a general confederacy in Europe, formed by the immense genius of Henry the Fourth of France; in which he received most essential assistance from the genius, no less penetrating and active, of Elizabeth of England.
It is very remarkable, that, by several writers, and even by some very profound ones, this very enlarged plan of government is considered as nothing better than a mere visionary project; and doubts are proposed whether it could ever engage the serious contemplation of Henry the Great. To me, I confess, the matter appears in a very different light; and I feel myself justified and supported in directing your close and earnest attention to it, when I consider the fact as authenticated by the testimony of Sully, Henry’s faithful and confidential minister, and the plan itself as occupying, for a series of years, the unremitted application of Henry and Elizabeth; who were distinguished by their wisdom, as well as by their enterprise; and who knew, if ever princes knew, how to draw the important line between what is extravagant and what is great.
An investigation of this sublime system, from its commencement through the various and successive stages of its progress and preparation, must be instructive to all: to Americans, it must be interesting as well as instructive.
Sully enters upon his account of it with expressing some sagacious apprehensions, that—as, in fact, has since been the case—it would be considered as one of those darling chimeras, or idle political speculations, in which a mind susceptible of singular and uncommon conceptions, is sometimes easily engaged. He confesses, that at the first time the king suggested to him the idea of a political system, by which all Europe might be managed and governed as a single family, he received the suggestion, supposing that Henry meant by it nothing more than to amuse himself with an agreeable speculation, or, at most, to show, that his contemplations on political subjects were more profound and more extensive than those of others.
How modest is conscious merit! Henry often afterwards owned to his confidential friend, that he had long concealed even from him what he meditated upon this great subject, from a principle of shame, lest he should disclose designs, which might appear ridiculous or impracticable.
Inattentive to this great design, when it was first suggested, the cold and cautious Sully was averse to it when the suggestion was renewed. An endless series of difficulties and obstructions presented itself to his circumspect mind. The extent of a design, which supposed a union of all the states in Europe; the concatenation of events, almost infinite, that would be necessary for its accomplishment; the immense expenses, which, if it could be accomplished, would thereby be rolled upon France at a crisis, when she was scarcely able to supply her own necessities—all these considerations induced him to consider the scheme as a vain one, and even to suspect, that, in it, there was something illusory. The disposition of the princes of Europe to become jealous of France, when she should have assisted them to dissipate their fears from the overgrown power of the house of Austria, appeared, of itself, an insurmountable obstacle. His own sentiments he endeavoured to infuse into the mind of the king, with an honest desire to undeceive him, as he thought. Henry begged him to consider the plan in its several parts, and not to pass an indiscrimte sentence of condemnation upon the whole. This solicitation, so reasonable and so unassuming, it was impossible to refuse. The result of Sully’s consideration was what Henry expected it would be—the conversion of the minister to the opinions of the prince. After having seen all the parts of the fabrick from their proper points of view, after having made the necessary examinations and the necessary calculations, he found himself engaged and confirmed in the sentiment, that the plan was just in its intention, and that it would be practicable in the execution, and glorious in its consequences.
Great minds frequently unite, without intercommunication, upon the same great object. This exalted system presented itself to the penetration and magnanimity of Elizabeth, before it had occurred to the expansive comprehension of Henry. Indeed it appears doubtful, whether he was not indebted to her for the first hint of the design. But between two such minds, there was no mean jealousy about the right or the merit of the prior discovery. The family of Sully is still possessed of a letter written by Henry, evidently to Elizabeth, though her name does not appear either in the superscription or in the letter itself. It is addressed to “her who merits immortal praise.” In it, Henry speaks of a certain object, which he calls “the most excellent and rare enterprise that the human mind ever conceived”—“a thought rather divine than human.” He mentions, with rapture, “a discourse so well connected and demonstrative of what would be necessary for the government of empires and kingdoms,” and those “conceptions and resolutions,” from which nothing less could be hoped, than “most remarkable issues both of honour and glory.” These expressions can point, to no other person than Elizabeth—to no other object than that, in the investigation of which we are now engaged.
It is well known that Henry and Elizabeth were anxious to have a personal interview; and that, in the year 1601, the latter came to Dover and the former to Calais for this purpose. The ceremonials, established among princes, prevented the satisfaction of a conference; but those communications, which Henry could not make in person, he transmitted by the faithful Sully. This minister found that she was deeply engaged in the means, by which the great design might be happily executed; and that, notwithstanding the difficulties, which, in some points, she apprehended, she did not appear at all to doubt of success. This she chiefly expected for a reason, of the solidity and justness of which, Sully declares that he was afterwards well convinced. It was, that as the plan was, in truth, contrary only to the designs of some princes, whose ambitious views were sufficiently known to all Europe, the obstacles interposed by those princes, instead of retarding, would promote the design; since they would place its necessity in a more striking point of view.
“A very great number,” says Sully, “of the articles, conditions, and different dispositions is due to this queen; and sufficiently evince, that, in respect of wisdom, penetration, and all the other perfections of the mind, she was not inferiour to any king, the most truly deserving of that title.”
The death of this great princess gave such a violent shock to the whole plan, that Henry and his minister were almost induced to abandon their fondest hopes. The successour to the throne was the successour neither to the virtues nor to the talents of Elizabeth; and Henry had too much penetration to expect that assistance, which James12 had too much pusillanimity to give. After some time, however, favourable circumstances occurred again, which induced him to reassume the plan, and to prepare, with renewed vigour, for its execution. Of its execution, he was on the very eve, when the fatal poignard of Ravaillac13 interrupted it.
The leading object in the great design was to reduce within reasonable bounds, the formidable power of the house of Austria. With this view, it was proposed to devest that house of its possessions in Germany, Italy, and the Low Countries; and to confine it to the kingdom of Spain, bounded by the ocean, the Mediterranean, and the Pyrenean mountains. That it might, however, be equally powerful with the other sovereigns in Europe, it was intended to allot to it Sardinia, Majorca, Minorca, the Canaries, the Azores, and its possessions in Asia, Africa, and America.
“If there be any where,” says Vattel,y “a state restless and mischievous, always ready to injure others, to traverse their designs, and to foment domestick troubles within them; it is not to be doubted, that all have a right to join in order to repress it, and deprive it of the power to molest them in future. The conduct of Philip the second of Spain14 was adapted to unite all Europe against him; and it was from just reasons that Henry the Great formed the design of humbling a power, formidable by its forces, and pernicious by its maxims.”
Between Henry and Elizabeth, it was a settled point, that neither of them should, by the different dismemberments proposed to be made, receive any thing, except the glory of distributing them with equity and impartiality. Henry even sometimes said, with equal moderation and good sense, that were the meditated dispositions once firmly established, he would have consented that the extent of France should have been determined by a majority of suffrages. With regard to England, the conduct of Elizabeth was probably influenced by an observation, which she made, that the Britannick isles, in all the different states, through which they passed, and among all the variations of their laws and policy, had never experienced great misfortunes, but when their sovereigns had interfered in matters beyond the sphere of their little continent. It seems, indeed, as if they were concentred in it, even by nature; and their happiness appears to depend entirely on themselves, provided they aim only to maintain peace in the three nations subject to them, by governing each according to its own laws and customs.
The ultimate design of the great plan was, to divide Europe equally among a certain number of powers, in such a manner, that no one might have reason for either envy or fear, from the power or possessions of the others. The number of states were reduced to fifteen. They were of three different kinds; hereditary monarchies; elective monarchies; republicks. The hereditary monarchies were six—France, Spain, Britain, Denmark, Sweden, Lombardy. The elective monarchies were five—the Empire, the Papacy, Poland, Hungary, Bohemia. The republicks were four—the Venetian, the Italian, the Helvetick, the Belgick.
There was to have been a general council, representing all the states of Europe. The establishment of this would have been the happiest invention that could have been conceived for preventing those innovations, and for applying a remedy to those inconveniences or defects, which time often introduces or discovers in the wisest and the most useful institutions. The model of this general council of Europe was formed on that of the ancient Amphyctions of Greece (a delineation of which I have already laid before you) with such alterations only as rendered it suitable to the alterations of customs, climate, and policy. It was to consist of a certain number of delegates from all the governments of the Christian Republick, who were to be constantly assembled as a senate. This body was to discuss the different interests, decide the controversies, and determine all the civil, political, and religious affairs of Europe, whether within itself or with its neighbours. The senate was to consist of four delegates from each of the following powers—the Emperour, the Pope, the kings of France, Spain, England, Denmark, Sweden, Lombardy, Poland, and the republick of Venice; and of two only from the other republicks and inferiour powers. All together would have composed a senate of about sixty six persons. They were to be chosen every three years. With regard to the place of meeting, it was undetermined whether it would be better for the council to be fixed or ambulatory; united in one, or divided into three. If it were divided into three, each containing twenty two magistrates, then each of them must have been fixed in such a centre as should appear to be most commodious. If it were judged more expedient not to divide the assembly, whether fixed or ambulatory, it must have been nearly in the centre of Europe.
Besides this general council, it would have been proper to have constituted subordinate councils: but whatever the number or form of those subordinate councils had been, it would have been absolutely necessary that an appeal should have lain from them to the general council, whose decisions, when considered as proceeding from the united authority of all the sovereigns, pronounced in a manner equally free and absolute; must have been regarded as so many final and irrevocable decrees.
A particular account is given by Sully of the measures taken to secure the success of this great and glorious design.
Henry was indefatigable in his negotiations in the different courts of Europe, particularly in the United Provinces, and in the circles of Germany. The council of the states-general were very soon unanimous in their determinations. The states-general were, in a short time, followed by the landgrave of Hesse, and the prince of Anhalt, to whom, as well as to the prince of Orange, the confederacy was obliged for being increased by the duke of Savoy; by all of the reformed religion in Hungary, Bohemia, and lower Austria; by many princes and towns in Germany; and by a great proportion of the Swiss Cantons. But a discovery either of the true motives, or of the full extent of the design, was cautiously avoided. It was, at first, concealed from all, without exception; and it was afterwards revealed, only to a few persons of approved discretion; and even of those, only to such as were absolutely to engage others to join the confederacy.
The king, on his side, had actually set on foot two good and well furnished armies; one of which he was to have commanded in person. It was to have consisted of twenty thousand foot, all native French, eight thousand Swiss, four thousand Lansquenets or Walloons, five thousand horse, and twenty cannons. The second was to have been commanded by Lesdiguieres, consisting of ten thousand foot, one thousand horse, and ten cannons; besides a flying camp of four thousand foot, six hundred horse, and ten cannons; and a reserve of two thousand foot to garrison places, where they might be necessary. Magazines were collected and deposited in proper places, for facilitating the execution of the enterprise: and, with the same view, manifestoes were composed with the greatest care. In them, a spirit of justice, of good policy, of honesty, of disinterestedness, and of inviolable faith was universally apparent.
It is impossible to dismiss a design, so interesting to humanity, without indulging a few observations concerning its nature, and its probable effects. That it was bold and magnificent, it will be unanimously agreed: but was it nothing more? was it not presumptuous and extravagant? We have seen that, as such, it was, at first, considered by Sully. As such, even the least difficult and most unimportant parts of it were considered by the other counsellors of France: for it was only on the least difficult and most unimportant parts, that he could venture to consult them. “Could it be imagined,” says Sully, “that Henry, in his whole council, could not find one person, besides myself, to whom he could, without danger, disclose the whole of his designs; and that the respect due to him could scarce restrain those, who appeared most devoted to his service, from treating what, with the greatest circumspection, he had intrusted to them, as wild and extravagant chimeras.” So true is sometimes the poet’s exclamation—
But nothing discouraged that great prince, who was an abler politician and a better judge than all his council, and than all his kingdom. When he perceived that affairs, both at home and abroad, began to wear a favourable aspect, he then considered his success as infallible.
At this distance of time, and with our present imperfect knowledge of particular circumstances, it would be unwise to attempt a judgment, or even a conjecture, upon a detail of facts, existing at that age, and in the different states of Europe. But from general principles, and from our knowledge of some eminent characters, inferences, plausible and even satisfactory, may be drawn.
One inference may be drawn from the nature of the design, which Henry had formed. It was not a design inspired by mean and despicable ambition: it was not a design, guided by base and partial interests: it was a design, in the first place, to render France happy, and permanently happy: but as he well knew that France could not enjoy permanent felicity, unless in conjunction with the other parts of Europe; and as he was well pleased that the other parts of Europe should participate the felicity of France; it was the happiness of Europe in general which he laboured to procure; and to procure in a manner so solid and so durable, that nothing should afterwards be able to shake its foundations. May we not conclude, that, every thing else being equal, the probability is in favour of a great and good design? The fury and ravage of conquests have extended farther and wider, than the benevolent system of Henry the Great was meant or proposed to extend. Why should evil be more powerful or more enlarged in its operations than good? In private life, success is most frequently, though not universally, on the side of virtue: is it natural to expect a contrary rule in the administration of states and kingdoms? Is there not reason to hope that publick virtue will, on the whole, be triumphant; and that publick flagitiousness must, and should, and, at a proper time, will be degraded to the deepest abyss of humiliation?
These observations suggest general reasons in favour of the great design: other reasons may be drawn from the character, and talents, and virtues of the great man, who undertook its execution. It could not have been formed by one more eminently qualified to accomplish it. He possessed a courage capable of surmounting the greatest obstacles: he possessed a presence of mind, which saw and seized every opportunity of advantage: he possessed a prudence, which would not precipitate, but would calmly and patiently wait for the fit season of action: he possessed consummate experience, the result jointly of talents and of time. With all those great qualities as a soldier, as a statesman, and as a patriot, what was there, fair, or honest, or honourable, to which he could not form just pretensions? Had this enterprise failed in his hands, it would probably have failed for no other reason than this—that he was too great and too enlightened for the age in which he lived.
Had he been successful, the consequences of his success would, indeed, have been beneficial, lasting, and extensive. Those consequences would have reached not only his own subjects, not only the christian nations of Europe, but the whole world in general: of those consequences, the generation, at that time alive, the generations that have since succeeded, and those generations that are still to succeed, would have participated, down to the latest periods of time: those consequences would have been the source of all the sweets, which naturally flow from an uninterrupted and universal tranquillity.
Let me add another remark, which has been made in Europe, and which, with pride and joy, may be transferred to America. “Henry the Great has always had the honour of being considered as the author of the most important invention for the benefit of mankind, that has yet appeared in the world; the execution of which may, perhaps, be reserved by Providence, for the greatest and most capable of his successours.” This rich succession has been reaped in America. Here the sublime system of Henry the Great has been effectually realized, and completely carried into execution.
When the political bonds, by which the American States had been connected with Great Britain, were dissolved; when they assumed, among the powers of the earth, the separate and equal station, to which the laws of nature and of nature’s God entitled them, the form of government, which each should institute for herself, and that form, if any, which all should institute for all, became objects of the most serious and interesting deliberation. With regard to this last, which is the object of our present discussion, four different systems lay before them; any one of which they might have adopted. They might have consolidated themselves into one government, in which the separate existence of the states would have been entirely absorbed. They might have rejected any plan of union or association, and have acted as distinct and unconnected states. They might have formed two or more confederacies. They might have united in one federal republick.
To support, with vigour, a single government over the whole extent of the United States, would, I apprehend, demand a system of the most unqualified and the most unremitted despotism: even despotism herself, extended so far and so wide, would totter under the weight of her own unwieldiness.
Separate states, numerous as those of America are, still more numerous as they must become, contiguous in situation, unconnected and disunited in government, would, at one time, be the prey of foreign force, foreign influence, and foreign intrigue; at another, the victims of mutual rage, rancour, and revenge.
Would it have been proper to have divided the United States into two or more confederacies? It will not be unadvisable to examine this object with accuracy and attention. Some aspects, under which it may be viewed, are far from being, at first sight, uninviting. Two or more confederacies would be each more compact and more manageable, than a single one extending over the same territory. By dividing the United States into two or more confederacies, the great collision of interests, apparently or really different or contrary, in the whole extent of their dominion, would be broken, and, in a great measure, disappear in the several parts. But these advantages, which are discovered from certain points of view, are greatly overbalanced by inconveniences, which will appear on a closer inspection. Animosities and, perhaps, wars would arise from assigning the extent, the limits, and the rights of the different confederacies. The expenses of governing would be multiplied by the number of federal governments. The danger, resulting from foreign influence and mutual dissensions, would not, perhaps, be less great and alarming in the instance of different confederacies, than in the instance of different, though more numerous, unassociated states. These observations, and many others which might be made on the subject, will be sufficient to evince, that a division of the United States into a number of separate confederacies would probably be an unsatisfactory and an unsuccessful experiment.
The only remaining system, that is to be considered, is the union of the American States into one confederate republick. It will not be necessary to employ many arguments to show, that this is the most eligible system, which could have been proposed. By adopting it, the vigour and decision of a wide spreading monarchy may be associated with the freedom and beneficence of a compacted commonwealth. On one hand, the extent of territory; the diversity of climate and soil; the number, and greatness, and connexion of lakes and rivers, with which the United States are intersected and almost surrounded, all indicate an enlarged government to be fit and advantageous for them. On the other hand, the principles and dispositions of their citizens indicate, that, in this enlarged government, liberty shall reign triumphant.
Agreeably to these principles, the United States have been formed into one confederate republick; first, under the articles of confederation; afterwards, under our present national government. The weakness and inefficiency of the former; the excellencies, the advantages, and the imperfections of the latter—for it has its imperfections, though neither many nor dangerous—we shall hereafter have an opportunity of showing. Our present purpose will be best answered by taking a general view of those principles, characters, and properties, which distinguish or ought to distinguish a confederate republick and its members.
“An overgrown republick,” says the Marquis of Beccaria, in the exquisite performance, with which he has enriched the treasures of legislation—“an overgrown republick can be saved from despotism, only by subdividing it into a number of confederate republicks. But how is this practicable? By a despotick dictator, who, with the courage of Sylla,15 has as much genius for building up, as that Roman had for pulling down. If he be an ambitious man; his reward will be immortal glory: if a philosopher; the blessings of his fellow citizens will sufficiently console him for the loss of authority, though he should not be insensible to their ingratitude.”z In the United States, there is no occasion for the assumption of dictatorial power, in order to be enabled to perform supereminent services for the publick. Powers amply sufficient for the performance of the greatest services, the enlightened citizens of the United States know how to give. As they know how to give those powers, so they know how to confine them within the proper and reasonable limits.
If a commonwealth is small, it may be destroyed by a foreign power; if it is extensive, it carries within it the internal causes of its destruction. This double disadvantage affects equally democracies and aristocracies, whether they are well, or whether they are ill constituted. The former disadvantage is selfevident; and, therefore, requires no illustration. The latter may be evinced from the following considerations. In a very extended commonwealth, it is difficult, if not impracticable, to provide, at the same time, the three following requisites—a number of representatives, which will not be too large; opportunities of minute and local information, which will be sufficiently frequent and convenient; and a connexion between the constituent and representative, which will be sufficiently intimate and binding. The experience of ages evinces, that, where a certain excess in numbers prevails, regularity, decency, and the convenient despatch of business are expected in vain. On the other hand, when, to avoid an excessive number of representatives, one representative is allotted to too great a number of constituents; it is improbable, that the former should possess a sufficient degree of accurate and circumstantial knowledge, or of an interest, common, and, at the same time, peculiar, with the latter, to qualify him for the zealous and well informed discharge of his confidential trust. Add to these considerations, that, in a commonwealth, the proceedings and deliberations are too complicated and too slow for the emergencies of an extended government; to whose affairs and interests, simplicity and secrecy in council, and vigour and despatch in execution are of indispensable necessity. For these reasons, it is not unlikely, that mankind would, at last, have been obliged to submit always to the government of a single person, if they had not invented the form of a constitution, which is recommended by all the internal advantages of a republican government, and, at the same time, by all the force and energy of a government, which is monarchical. This form is a federal republick.
This form of government is a convention, by which several states consent to become citizens of a larger state, which they wish to form.a It is a society formed of other societies, which make a new one. This new one may be enlarged and aggrandized by the union of associates still new.
This kind of republick, fitted for resistance against exteriour attacks, is equally fitted to maintain its greatness without interiour corruption. It is formed for avoiding the inconveniences of that government, which is bad; and for securing the benefits of that, which is good.
In this kind of republick, the rights of internal legislation may be reserved to all the states, of which it is composed; while the adjustment of their several claims, the power of peace and war, the regulation of commerce, the right of entering into treaties, the authority of taxation, and the direction and government of the common force of the confederacy may be vested in the national government.
A confederate republick should consist of states, whose government is of the same nature; and it is proper that their government should be of the republican kind. Small monarchies are unfriendly to the genius of confederation. The spirit of monarchy is too often dominion and war; that of a commonwealth is more frequently moderation and peace. It is not likely, therefore, that these two kinds of government should subsist, on amicable terms, in the same confederated republick. Thus Germany, which consists of free cities and arbitrary monarchies, forms a confederacy, jarring and disjointed. Thus Greece was ruined, when the kings of Macedon obtained a seat among the Amphyctions. Hence we may see the propriety and wise policy of that article in the constitution of the United States,b which provides, that they shall guaranty to every state in the union a republican form of government.
When we say, that the government of those states, which unite in the same confederacy, ought to be of the same nature; it is not to be understood, that there should be a precise and exact uniformity in all their particular establishments and laws. It is sufficient that the fundamental principles of their laws and constitutions be consistent and congenial; and that some general rights and privileges should be diffused indiscriminately among them. Among these, the rights and privileges of naturalization hold an important place. Of such consequence was the intercommunication of these rights and privileges in the opinion of my Lord Bacon, that he considered them as the strongest of all bonds to cement and to preserve the union of states. “Let us take a view,” says he, “and we shall find, that wheresoever kingdoms and states have been united, and that union incorporated by a bond of mutual naturalization, you shall never observe them afterwards, upon any occasion of trouble or otherwise, to break and sever again.”c Machiavel,16 when he inquires concerning the causes, to which Rome was indebted for her splendour and greatness, assigns none of stronger or more extensive operation than this—she easily compounded and incorporated with strangers.d This important subject has received a proportioned degree of attention in forming the constitution of the United States. “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”e In addition to this, the congress have power to “establish a uniform rule of naturalization throughout the United States.”f
Though a union of laws is, by no means, necessary to a union of states; yet a similarity in their code of publickg laws is a most desirable object. The publick law is the great sinew of government. The sinews of the different governments, composing the union, should, as far as it can be effected, be equally strong. “In this point,” says my Lord Bacon, “the rule holdeth, which was pronounced by an ancient father, touching the diversity of rites in the church; for finding the vesture of the queen in the psalm (who prefigured the church) was of divers colours; and finding again that Christ’s coat was without a seam, concludeth well, in veste varietas sit, scissura non sit.”h
Non omnibus facies una; sed qualis decet esse sororum.17
In a confederated republick, consisting of states of unequal numbers, extent, and power, the influence of each ought to bear a corresponding proportion. The Lycian republick was an association of twenty three towns. The large ones had three votes in the common council, the middling ones two, the small ones one. They contributed to the national expenses according to the proportion of suffrages. “Were I to give a model,” says the celebrated Montesquieu,i “of an excellent confederate republick, I would pitch upon that of Lycia.”
No one state, comprehended within a confederated republick, should be permitted to conclude an alliance with a foreign nation. This salutary regulation subsists not in the constitution of the Germanick Body. Hence the frequent dissensions and calamities, to which that great confederacy is constantly exposed, and with which it is frequently visited, through the rashness or the ambition of a single member.
With regard to foreign transactions, and with regard to those matters, which affect the general interests of the whole union, a confederated republick should be considered and should act as a single government or nation.
A union of hearts and affections, as well as a union of counsels and interests, is the very life and soul of a confederated republick. This is a subject, on which it is almost impossible to say too much, or to speak with too much zeal. We have, in former lectures,j seen how strong, how active, and how persevering are the operations and aims of our social powers. They are capable of being raised to the greatest height. They are capable of being enlarged to the greatest extent. But they partake of human imperfection: in their most useful and amiable forms, they sometimes degenerate into irregularity, abuse, and what I may call an excess of concentricity: by this I mean, overstrained exertions within a narrow and contracted sphere. Faction itself is frequently nothing else than a warm but inconsiderate ebullition of our social propensities.
How easily is the esprit du corps generated! How powerfully is it felt! How universally does it operate! How early does it appear! How ardent we see it in boys of different schools; and of different classes in the same school! With what emulation do they strive to outshine one another in their several tasks or sports! With what eagerness do the young men of neighbouring and rival towns—rival because they are neighbouring—contend for victory in their rural and manly exercises! Let the distinction be once formed—it is immaterial on what occasion, or from what cause—and its effects will be both strong and lasting. They will be beneficial or pernicious, according to the direction, which it first receives, and the objects to which it ultimately tends. How frivolous; how fierce; how obstinate; and how bloody were the contests of the Blues and Greens in the Hippodrome of Constantinople!18 The empire was sometimes shaken to its centre; and those, who produced the strong convulsions, could tell neither what they wished, nor why they were agitated. On the other hand; how often has the reputation of a regiment been preserved or heightened—how often, in battle, has victory been obtained or retrieved, by the wise encouragement and skilful application of the esprit du corps! This spirit should not be extinguished: but in all governments, it is of vast moment—in confederated governments, it is of indispensable necessity—that it should be regulated, guided, and controlled.
“The associating genius of man,” says my Lord Shaftesbury, “is never better proved, than in those very societies, which are formed in opposition to the general one of mankind, and to the real interest of the state.”k Extensive governments are particularly exposed to this inconvenience: to this inconvenience a national government, such as ours, composed of a great number of states, powerful, extensive, and separated, to a great distance, by situation, and, sometimes too, by an opinion of interest, not only from one another, but from the superintending power, by which they are connected—to this inconvenience, I say, such a national government is, of all, the most exposed—by this inconvenience, I add, such a national government is, of all, the most endangered. To embrace the whole, requires an expansion of mind, of talents, and of temper. To the trouble, though the generous trouble, of expanding their mind, their talents, and their temper, some will be averse from indolence, or what the indolent call moderation; others will be averse from interest, or what the interested call prudence. The former will encourage a narrow spirit by their example; the latter will encourage it by their exertions also. These last will introduce and recommend the government of their state, as a rival, for social and benevolent affection, to the government of the United States. The simplicity of some, the inexperience of others, the unsuspecting confidence, again, of others will be won by plausible and seducing representations; and, in this manner, and by these arts, the patriotick emanations of the soul, which would otherwise be diffused over the whole Union, will be refracted and converged to a very narrow and inconsiderable part of it.
Against this ungenerous application of one of the noblest propensities of our nature, the system of our education and of our law ought to be directed with the most vigorous and unremitted ardour. This application of that noble propensity is not merely ungenerous: it is no less unwise. It is unwise, as to the person, who makes it; it is unwise, as to the state, to the advantage of which it is supposed to be made. Apply and extend, in favour of the Union, the same train of reflection and argument which is used in favour of the state. With regard to the latter, will it not be allowed—will it not be urged—will it not be properly urged, that the interest of the whole should never be sacrificed to that of a part, nor the interest of a greater part to that of a part, which is smaller? Will it not be allowed—will it not be urged, that to think or act in a contrary manner, would be improper and unwise? Why should not the same reasoning and the same conduct be allowed—why should they not be urged—for they may be urged with equal propriety—in favour of the interests of the Union, or of the greater part of the Union, compared with those of a single member, of which that Union is composed?
But it will be seldom, if ever, necessary that the interest of a single state should be sacrificed to that of the United States. The laws, and government, and policy of the union operate universally and not partially; for the accomplishment of general and not of local purposes. On the other hand, the laws, and government, and policy of a particular state, compared with the Union, operate partially and not universally; for the accomplishment of purposes, which are local, and not general. If, then, on any subject, a difference should take place between the sentiments, and designs, and plans of the national government and those of the government of a single state; on whose side are justice and general utility likely to be found? It is to be presumed that they will be found on the side of the national government. That government is animated and directed by a representation of the whole Union: the government of a single state is animated and directed by a representation of only a part, inconsiderable when compared with the whole. Is it not more reasonable, as well as more patriotick, that the interests of every part should be governed, since they will be embraced, by the counsels of the whole, than that the interests of the whole should be governed, since they will not be embraced, by the counsels of a part?
Expanded patriotism is a cardinal virtue in the United States. This cardinal virtue—this “passion for the commonweal,” superiour to contracted motives or views, will preserve inviolate the connexion of interest between the whole and all its parts, and the connexion of affection as well as interest between all the several parts.
Let us, then, cherish; let us encourage; let us admire; let us teach; let us practise this “devotion to the publick,” so meritorious, and so necessary to the peace, and greatness, and happiness of the United States.
2. Thom. Works. 158.
2. Thom. Works. 162.
[a. ]2. Gog. Or. Laws. 26.
[b. ]Lel. L. P. Prel. 43.
[c. ]2. Gog. Or. Laws. 27.
[d. ]Lel. L. P. Prel. 39. 53.
[e. ]Lel. Dem. Int. to oration de corona.
[f. ]2. Gog. Or. Laws. 27.
[g. ]2. Gog. Or. Laws. 28.
[h. ]Lel. L. P. Prel. 56. 57.
[i. ]2. Ub. Em. 320. 323.
[j. ]Sp. Laws. b. 9. c. 3.
[1. ]A confederation of Greek city states in Achaea in the fifth and fourth centuries bc
[2. ]Lacedaemon was an alternative name for Sparta.
[k. ]1. Pub. 114. 2. Ub. Em. 240. 243.
[3. ]The league (or confederacy centered on the cities of Aetolia in central Greece) that was formed in 370 bc to oppose the Achaean League and Macedon.
[l. ]2. Ub. Em. 257.
[m. ]1. Pub. 119. 120.
[n. ]Vat. 171.
[o. ]1. Pub. 123.
[p. ]We may exceed the United Provinces by having, not many sovereignties in one commonwealth, but many commonwealths under one sovereignty. Milt. 370.
[4. ]The office of a viceroy or chief executive officer in the confederate provinces that would become the Netherlands.
[q. ]1. Pub. 125. 126.
[r. ]2. Anal. Rev. 337.
[5. ]A possible confederacy that existed among seven Anglo-Saxon kingdoms in the seventh and eighth centuries.
[6. ]A wittenagemote, or witenagemote, was an Anglo-Saxon council occasionally convened to advise the king.
[s. ]Mil. 52.
[t. ]3. Edin. Phil. Trans. 18.
[u. ]De mor. Germ. c. 12.
[7. ]At the same assemblies are chosen leaders, who administer law through the towns and villages.
[8. ]Chief or leading man of a region.
[9. ]Chiefs or leading men of pagi (i.e., provincial districts, particularly in Gaul and Germany).
[v. ]Tac. de mor. Germ. c. 38. 39.
[w. ]3. Edin. Phil. Trans. 22.
[10. ]Harald I (c. 850–c. 933) was the first king and founder of Norway.
[11. ]An Icelandic historian, Jonas lived from 1568 to 1648.
[x. ]3. Edin. Phil. Trans. 23.
[12. ]James I (1566–1625) was king of England from 1603 to 1625. He was the first to call himself the king of Great Britain.
[13. ]François Ravaillac (1578–1610) assassinated Henry IV in 1610.
[y. ]B. 2. s. 53.
[14. ]Philip II (1527–1598) was king of Spain from 1556 to 1598.
[15. ]Lucius Cornelius Sulla Felix (c. 138–78 bc) was a skilled Roman general who was eventually appointed lifetime dictator of Rome.
[z. ]Bec. c. 26.
[a. ]Mont. Sp. Laws. b. 9. c. 1.
[b. ]Art. 4. s. 4.
[c. ]4. Ld. Bac. 243.
[16. ]Niccolò Machiavelli (1469–1527) was an Italian political thinker. He is best known for his works The Prince and Discourses on Livy.
[d. ]Id. 214.
[e. ]Art. 4. s. 2.
[f. ]Art. 1. s. 8.
[g. ]4. Ld. Bac. 224. 225.
[h. ]4. Ld. Bac. 215. In clothing let there be variety, but no seam.
[17. ]They have not all the same appearance; but such as it befits sisters to have.
[i. ]Sp. Laws. b. 9.c. 3.
[j. ]Ante ch. 7.
[18. ]The Hippodrome of Constantinople was a horse-racing track and social center of the city. The Blues and Greens were different teams, whose contests sometimes heated to the point of civil war. The worst of these was the riots of Nika (532), when thirty thousand people were supposedly killed.
[k. ]1. Shaft. 114.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2. Chapter: CHAPTER XII.: Of the Natural Rights of Individuals.
Accessed from oll.libertyfund.org/title/2074/166652 on 2008-08-21
We have now viewed the whole structure of government; we have now ranged over its numerous apartments and divisions; and we have examined the materials of which it is formed. For what purpose has this magnificent palace been erected? For the residence and accommodation of the sovereign, Man.
Does man exist for the sake of government? Or is government instituted for the sake of man?
Is it possible, that these questions were ever seriously proposed? Is it possible, that they have been long seriously debated? Is it possible, that a resolution, diametrically opposite to principle, has been frequently and generally given of them in theory? Is it possible, that a decision, diametrically opposite to justice, has been still more frequently and still more generally given concerning them in practice? All this is possible: and I must add, all this is true. It is true in the dark; it is true even in the enlightened portions of the globe.
At, and nearly at the commencement of these lectures, a sense of duty obliged me to enter into a controversial discussion concerning the rights of society: the same sense of duty now obliges me to enter into a similar discussion concerning the rights of the constituent parts of society—concerning the rights of men. To enter upon a discussion of this nature, is neither the most pleasant nor the most easy part of my business. But when the voice of obligation is heard, ease and pleasure must preserve the respectful silence, and show the cheerful acquiescence, which become them.
What was the primary and the principal object in the institution of government? Was it—I speak of the primary and principal object—was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?
The latter, I presume, was the case: and yet we are told, that, in order to acquire the latter, we must surrender the former; in other words, in order to acquire the security, we must surrender the great objects to be secured. That man “may secure some liberty, he makes a surrender in trust of the whole of it.”—These expressions are copied literally from the late publication of Mr. Burke.a
Tyranny, at some times, is uniform in her principles. The feudal system was introduced by a specious and successful maxim, the exact counterpart of that, which has been advanced by Mr. Burke—exact in every particular but one; and, in that one, it was more generous. The free and allodial proprietors of land were told that they must surrender it to the king, and take back—not merely “some,” but—the whole of it, under some certain provisions, which, it was said, would procure a valuable object—the very object was security—security for their property. What was the result? They received their land back again, indeed; but they received it, loaded with all the oppressive burthens of the feudal servitude—cruel, indeed; so far as the epithet cruel can be applied to matters merely of property.
But all the other rights of men are in question here. For liberty is frequently used to denote all the absolute rights of men. “The absolute rights of every Englishman,” says Sir William Blackstone, “are, in a political and extensive sense, usually called their liberties.”b
And must we surrender to government the whole of those absolute rights? But we are to surrender them only—in trust:—another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?
After all; what is the mighty boon, which is to allure us into this surrender? We are to surrender all that we may secure “some:” and this “some,” both as to its quantity and its certainty, is to depend on the pleasure of that power, to which the surrender is made. Is this a bargain to be proposed to those, who are both intelligent and free? No. Freemen, who know and love their rights, will not exchange their armour of pure and massy gold, for one of a baser and lighter metal, however finely it may be blazoned with tinsel: but they will not refuse to make an exchange upon terms, which are honest and honourable—terms, which may be advantageous to all, and injurious to none.
The opinion has been very general, that, in order to obtain the blessings of a good government, a sacrifice must be made of a part of our natural liberty. I am much inclined to believe, that, upon examination, this opinion will prove to be fallacious. It will, I think, be found, that wise and good government—I speak, at present, of no other—instead of contracting, enlarges as well as secures the exercise of the natural liberty of man: and what I say of his natural liberty, I mean to extend, and wish to be understood, through all this argument, as extended, to all his other natural rights.
This investigation will open to our prospect, from a new and striking point of view, the very close and interesting connexion, which subsists between the law of nature and municipal law. This investigation, therefore, will richly repay us for all the pains we may employ, and all the attention we may bestow, in making it.
“The law,” says Sir William Blackstone, “which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind.c ” Is it a part of natural liberty to do mischief to any one?
In a former part of these lectures, I had occasion to describe what natural liberty is: let us recur to the description, which was then given.d “Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty.”
If this description of natural liberty is a just one, it will teach us, that selfishness and injury are as little countenanced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws, be annexed to both. But these penalties are a restraint only upon injustice and over-weening self-love, not upon the exercise of natural liberty.
In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the law of nature: in a state of civil liberty, he is allowed to act according to his inclination, provided he transgress not those limits, which are assigned to him by the municipal law. True it is, that, by the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but equally true it is, that, under a government which is wise and good, every citizen will gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men’s freedom, than he can lose by the diminution of his own. He will gain more by the enlarged and undisturbed exercise of his natural liberty in innumerable instances, than he can lose by the restriction of it in a few.
Upon the whole, therefore, man’s natural liberty, instead of being abridged, may be increased and secured in a government, which is good and wise. As it is with regard to his natural liberty, so it is with regard to his other natural rights.
But even if a part was to be given up, does it follow that all must be surrendered? “Man,” says Mr. Burke,e “cannot enjoy the rights of an uncivil and of a civil state together.” By an “uncivil” contradistinguished from a “civil” state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke—Sir William Blackstone.
In the Analysis of his Commentaries,f he mentions “the right of personal security, of personal liberty, and of private property”—not as the natural rights, which, I confess, I should have expected, but—as the “civil liberties” of Englishmen. In his Commentaries, speaking of the same three rights, he admits that they are founded on nature and reason; but addsg “their establishment, excellent as it is, is still human.” Each of those rights he traces severally and particularly to magna charta, which he justly considers as for the most part declaratory of the principal grounds of the fundamental laws of England.h He says indeed,i that they are “either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to publick convenience; or else those civil privileges, which society has engaged to provide, in lieu of the natural liberties so given up by individuals.” He makes no explicit declaration which of the two, in his opinion, they are; but since he traces them to magna charta and the fundamental laws of England; since he calls them “civil liberties;” and since he says expressly, that their establishment is human; we have reason to think, that he viewed them as coming under the latter part of his description—as civil privileges, provided by society, in lieu of the natural liberties given up by individuals. Considered in this view, there is no material difference between the doctrine of Sir William Blackstone, and that delivered by Mr. Burke.
If this view be a just view of things, the consequence, undeniable and unavoidable, is, that, under civil government, individuals have “given up” or “surrendered” their rights, to which they were entitled by nature and by nature’s law; and have received, in lieu of them, those “civil privileges, which society has engaged to provide.”
If this view be a just view of things, then the consequence, undeniable and unavoidable, is, that, under civil government, the right of individuals to their private property, to their personal liberty, to their health, to their reputation, and to their life, flow from a human establishment, and can be traced to no higher source. The connexion between man and his natural rights is intercepted by the institution of civil society.
If this view be a just view of things, then, under civil society, man is not only made for, but made by the government: he is nothing but what the society frames: he can claim nothing but what the society provides. His natural state and his natural rights are withdrawn altogether from notice: “It is the civil social man,” says Mr. Burke,k “and no other, whom I have in my contemplation.”
If this view be a just view of things, why should we not subscribe the following articles of a political creed, proposed by Mr. Burke.
“We wished, at the period of the revolution, and we now wish to derive all we possess, as an inheritance from our forefathers. Upon that body and stock of inheritance, we have taken care not to innoculate any cyon alien to the nature of the original plant. All the reformations we have hitherto made, have proceeded upon the principle of reference to antiquity; and I hope, nay I am persuaded, that all those, which possibly may be made hereafter, will be carefully formed upon analogical precedent, authority, and example.”
“Our oldest reformation is that of magna charta. You will see that Sir Edward Coke, that great oracle of our law, and indeed all the great men who follow him, to Blackstone, are industrious to prove the pedigree of our liberties.”
Let us observe, by the way, that the only position, relating to this subject, for which I find the authority of my Lord Coke quoted,l is a position, to which every one, who knows the history of the common law, will give his immediate and most unreserved assent: the position is—“that magna charta was, for the most part, declaratory of the principal grounds of the fundamental laws of England.” But Mr. Burke proceeds.
“They endeavour to prove, that the ancient charter, the magna charta of King John, was connected with another positive charter from Henry the first: and that both the one and the other were nothing more than a reaffirmance of the still more ancient standing law of the kingdom. In the matter of fact, for the greater part, these authors appear to be in the right; perhaps not always: but if the lawyers mistake in some particulars, it proves my position still the more strongly; because it demonstrates the powerful prepossession towards antiquity, with which the minds of all our lawyers and legislators, and of all the people whom they wish to influence, have been always filled; and the stationary policy of this kingdom in considering their most sacred rights and franchises as an inheritance.”m
It is proper to pause here a little.—If, in tracing the pedigree of our “most sacred rights,” one was permitted to indulge the same train of argument and reflection, which would be just and natural in the investigation of inferiour titles, we should be prompted to inquire, how it happens, that “mistakes in some particulars” would prove more strongly the general point to be established. Would mistakes in some particulars respecting a title to land, or the genealogy of a family, prove more strongly the validity of one, or the antiquity of the other?
But I must do Mr. Burke justice. The reason, which he assigns, why the making of those mistakes proves his position the more strongly, is, because it proves the “powerful prepossession towards antiquity.” Of this prepossession I will controvert neither the existence nor the strength: but I will ask—does it prove the point in question?—Does it prove the truth and correctness of even the civil pedigree of the liberties of England? Is predilection an evidence of right? Is property or any thing else, which is in litigation, decided to belong to him, who shows the strongest affection for it? If, in a controversy concerning an inferiour object, the person, who claims it, and who undertakes to substantiate his claim, should own, that, in deducing his chain of title, some mistakes were made; but should urge even those mistakes as an argument in his behalf, because his perseverance in his suit, notwithstanding those mistakes, demonstrates his powerful attachment for the thing in dispute; what would a discerning court—what would an unbiassed jury think of his conduct? I believe they would not think that it paid any extraordinary compliment, either to their impartiality or to their understanding.
I begin now to hesitate, whether we should subscribe the political creed of Mr. Burke. Let us, however, proceed and examine some of its other articles.
Some one, it seems, had been so hardy as to allege, that the king of Great Britain owes his crown to “the choice of his people.” This doctrine, says Mr. Burke, “affirms a most unfounded, dangerous, illegal, and unconstitutional position.” “Nothing can be more untrue, than that the crown of this kingdom is so held by his majesty.”n To disprove the assertion, “that the king of Great Britain owes his crown to the choice of his people,” Mr. Burke has recourse to the declaration of rights, which was made at the accession of King William and Queen Mary. “This declaration of right,” says he, “is the corner stone of our constitution, as reenforced, explained, improved, and in its fundamental principles for ever settled. It is called an ‘act for declaring the rights and liberties of the subject, and for settling the succession of the crown.’ These rights and this succession are declared in one body, and bound indissolubly together.”o “It is curious,” adds he, “with what address the temporary solution of continuity in the line of succession”—for it was impossible for Mr. Burke not to admit that from this line a temporary deviation was made—“it is curious with what address this temporary solution is kept from the eye; whilst all that could be found in this act of necessity, to countenance the idea of an hereditary succession is brought forward, and fostered, and made the most of by the legislature.” “The legislature,” he proceeds, “had plainly in view the act of recognition of the first of Queen Elizabeth, and that of James the first, both acts strongly declaratory of the inheritable nature of the crown; and, in many parts, they follow, with a nearly literal precision, the words and even the form, which is found in these old declaratory statutes.”p “They give the most solemn pledge, taken from the act of Queen Elizabeth, as solemn a pledge as ever was or can be given in favour of an hereditary succession. ‘The lords spiritual and temporal, and commons, do, in the name of all the people aforesaid, most humbly and faithfully submit themselves, their heirs and posterities for ever; and do faithfully promise, that they will stand to, maintain, and defend their said majesties, and also the limitation of the crown, herein specified and contained, to the utmost of their power.”q
I have mentioned above, that tyranny, at some times, is uniform in her principles: I have done her full justice: she is not so at all times. Of truth, liberty, and virtue, it is the exclusive prerogative to be always consistent.
Let us, for a moment, adopt the statement, which Mr. Burke has given us. Upon that statement I ask—if the humble and faithful submission of the parliament, in the name of all the people, was sufficient, in the time of Elizabeth, to bind themselves, their heirs and posterity for ever, to the line of hereditary succession; how came it to pass, that, in the time of William and Mary, the parliament, in the name of all the people, was justified in deviating, even for an instant, from the succession in that hereditary line? I ask again—if the humble and faithful submission of the parliament, in the name of all the people, was, in the sixteenth century, insufficient to bind their heirs and posterity in the seventeenth century; how comes it to pass that, in the seventeenth century, the humble and faithful submission of the parliament, in the name of all the people, could bind their heirs and posterity in the eighteenth century? Such a submission was either sufficient or it was not sufficient for that binding purpose: let the disciples of the doctrine, which rests on this dilemma, choose between the alternatives.
I have now no hesitation whether we should or should not subscribe the creed of Mr. Burke: that creed, which is contradictory to itself, cannot, in every part, be sound and orthodox.
But, to say the truth, I should not have given myself the trouble of delivering, nor you, of hearing these annotations upon it; unless it had derived the support, which it claims, from the Commentaries on the laws of England. The principles delivered in those Commentaries are never matters of indifference: I have already mentioned,r “that when they are not proper objects of imitation, they furnish excellent materials of contrast.”
Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights of its members; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.
Those rights result from the natural state of man; from that situation, in which he would find himself, if no civil government was instituted. In such a situation, a man finds himself, in some respects, unrelated to others; in other respects, peculiarly related to some; in still other respects, bearing a general relation to all. From his unrelated state, one class of rights arises: from his peculiar relations, another class of rights arises: from his general relations, a third class of rights arises. To each class of rights, a class of duties is correspondent; as we had occasion to observe and illustrate, when we treated concerning the general principles of natural law.
In his unrelated state, man has a natural right to his property, to his character, to liberty, and to safety. From his peculiar relations, as a husband, as a father, as a son, he is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties. These will be specified in their due course. From his general relations, he is entitled to other rights, simple in their principle, but, in their operation, fruitful and extensive. His duties, in their principle and in their operation, may be characterized in the same manner as his rights. In these general relations, his rights are, to be free from injury, and to receive the fulfilment of the engagements, which are made to him: his duties are, to do no injury, and to fulfil the engagements, which he has made. On these two pillars principally and respectively rest the criminal and the civil codes of the municipal law. These are the pillars of justice.
Of municipal law, the rights and the duties of benevolence are sometimes, though rarely, the objects. When they are so, they will receive the pleasing and the merited attention.
You now see the distribution, short, and simple, and plain, which will govern the subsequent part of my system of lectures. From this distribution, short, and simple, and plain as it is, you see the close and very interesting connexion between natural and municipal law. You see, to use again my Lord Bacon’s language, how the streams of civil institutions flow from the fountain of justice.
I am first to show, that a man has a natural right to his property, to his character, to liberty, and to safety.
His natural right to his property, you will permit me, at present, to assume as a principle granted. I assume it for this reason; because I wish not to anticipate now what will be introduced, with much greater propriety and advantage, when I come to the second great division of my lectures, in which I am to treat concerning things.
To his character, every one has a natural right. A man’s character may, I think, be described as the just result of those opinions, which ought to be formed concerning his talents, his sentiments, and his conduct. Opinions, upon this as upon every other subject, ought to be founded in truth. Justice, as well as truth, requires, concerning characters, accuracy and impartiality of opinion.
Under some aspects, character may be considered as a species of property; but, of all, the nearest, the dearest, and the most interesting. In this light it is viewed by the Poet of nature—
By the exertion of the same talents and virtues, property and character both are often acquired: by vice and indolence, both are often lost or destroyed.
The love of reputation and the fear of dishonour are, by the all-gracious Author of our existence, implanted in our breasts, for purposes the most beneficent and wise. Let not these principles be deemed the growth of dispositions only which are weak or vain; they flourish most luxuriantly in minds, the strongest and, let me add, the most humble. Of the happiness of heaven, a part of the unerring description is—that it is “full of glory.”
Well may character, then, be considered as one of the natural rights of man: well may it be classed among those rights, the enjoyment of which it is the design of good government and laws to secure and enlarge: well does it deserve their encouragement and protection; for, in its turn, it assists their operations, and supplies their deficiencies.
I remarked, a little while ago, that the rights and the duties of benevolence are but rarely, though they are at some times, the objects of municipal law. The remark may be extended to rights and duties of many other kinds. To many virtues, legal rewards are not, nor can they be, assigned: with legal impunity, many vices are, and must be, suffered to escape. But before a court of honour those qualities and sentiments and actions are amenable, which despise the subtlest process of the tribunals of law, and elude the keenest vigilance of the ministers of justice. This court, powerful in its sentences as well as extensive in its jurisdiction, decrees to virtue, and to the virtuous exertion of talents, a crown of fame, pure and splendid: vice, and idleness, less odious only than vice, it dooms to wear the badges of infamy, dirty and discoloured. This court, therefore, in a government of which virtue is the principle and vice is the bane, ought to receive, from all its institutions, the just degree of favour and regard.
The Poet adds—
And imitates her actions, where she is not.
The moral descriptions of Mr. Addison are seldom inaccurate. On this occasion, however, I must declare that I think him liable to the charge of inaccuracy. The counterfeit of virtue should not be dignified with the appellation of honour.
It is the sentiment of some writers, highly distinguished too by their liberal and manly principles, that honour is peculiar to governments which are monarchical. “In extreme political liberty,” says the Marquis of Beccaria, “and in absolute despotism, all ideas of honour disappear, or are confounded with others. In the first case, reputation becomes useless from the despotism of the laws; and, in the second, the despotism of one man, annulling all civil existence, reduces the rest to a precarious temporary personality. Honour, then, is one of the fundamental principles of those monarchies, which are a limited despotism; and in these, like revolutions in despotick states, it is a momentary return to a state of nature and original equality.”s
How prevalent even among enlightened writers, is the mistaken opinion, that government is subversive of equality and nature! Is it necessarily so? By no means. When I speak thus, I speak confidently, because I speak from principle fortified by fact. Let the constitution of the United States—let that of Pennsylvania be examined from the beginning to the end. No right is conferred, no obligation is laid on any, which is not laid or conferred on every, citizen of the commonwealth or Union—I think I may defy the world to produce a single exception to the truth of this remark. Now, as I showed at large in a former part of my lectures,t the original equality of mankind consists in an equality of their duties and rights.
That honour is the principle of monarchical governments, is the well known doctrine of the celebrated Montesquieu. But let us examine the nature and qualities of that honour which he describes. It is that honour which can subsist without honesty; for he says expressly,u that, in well policied monarchies, there are very few honest men. It is that honour which forbids not adulation, nor cunning, nor craft. It is that honour which judges of actions not as they are good, but as they are showy; not as they are just, but as they are grand; not as they are reasonable, but as they are extraordinary. It is, in one word, that honour, which fashions the virtues just as it pleases, and extends or limits our duties by its own whimsical taste. To this honour, indeed, truth in conversation is a necessary point: but is this for the sake of truth? By no means.
For the possession of this honour—vicious in its practice, and, even when right in its practice, vicious in its principle—a republican government will not, I presume, contend. But to that honour, whose connexion with virtue is indissoluble, a republican government produces the most unquestionable title. The principle of virtue is allowed to be hers: if she possesses virtue, she also possesses honour. I admire the fine moral and political instruction, as well as the elegant architectural taste, exhibited by the justly framed structure, in which the temple of honour was accessible only through the temple of virtue.
Viewed in this light, the honour of character is a property, which is, indeed, precious. But let it be remembered, that, in this view, it is a property, which must be purchased. To claim that reputation which we do not deserve, is as absurd, though it is not as barefaced, as to claim that property which is not ours. The only difference is, that, in the former case, we claim generally that which belongs to another, while, in the latter case, we claim that which only does not belong to ourselves. In both cases, the claim is equally unfounded.
To bestow on another that reputation which he does not deserve, is equally profuse, and, in many instances, is more unjust than to bestow on him that property, to which he is not, on the principles either of justice, or charity, or benevolence, entitled. As it is equally profuse, it is more to be guarded against. In the latter case, we bestow what is our own, and, therefore, are inclined to be cautious: in the former case, we are apt to be inconsiderate, because what we bestow is not ours. Indiscriminate praise is not so odious, but it is as useless and it is as heedless as indiscriminate censure. In one important particular they precisely coincide. They have an equal tendency to destroy and to render inefficacious the great distinction between right and wrong, approbation and disapprobation, virtue and vice.
If it is unwarrantable to bestow reputation where it is not due; what epithet shall we assign to that conduct, which plucks the wreath of honour from those temples, around which it has been meritoriously placed? Robbery itself flows not from a fountain so rankly poisoned as that, which throws out the waters of malicious defamation.
The subject of reputation will again come under your view, when I treat concerning prosecutions for libels and actions of slander: both of which suppose an unjustifiable aggression of character. What I have now said will suffice to point to the general principles, on which those actions and prosecutions should be defended, supported, and determined.
Property must often—reputation must always be purchased: liberty and life are the gratuitous gifts of heaven.
That man is naturally free, was evinced in a former lecture:v I will not reiterate what has been advanced.
I shall certainly be excused from adducing any formal arguments to evince, that life, and whatever is necessary for the safety of life, are the natural rights of man. Some things are so difficult; others are so plain, that they cannot be proved. It will be more to our purpose to show the anxiety, with which some legal systems spare and preserve human life; the levity and the cruelty which others discover in destroying or sporting with it; and the inconsistency, with which, in others, it is, at some times, wantonly sacrificed, and, at other times, religiously guarded.
In Sparta, nothing was deemed so precious as the life of a citizen. And yet in Sparta, if an infant, newly born, appeared, to those who were appointed to examine him, ill formed or unhealthy, he was, without any further ceremony, thrown into a gulph near mount Taygetus.w Fortunate it was for Mr. Pope—fortunate it was for England, which boasts Mr. Pope—that he was not born in the neighbourhood of mount Taygetus.
At Athens,x the parent was empowered, when a child was born, to pronounce on its life or its death. At his feet it was laid: if he took it in his arms, this was received as the gracious signal for its preservation: if he deigned not a look of compassion on the fruit of his loins, it was removed and exposed. Over almost all the rest of Greece,y this barbarity was permitted or authorized.
In China, the practice of exposing new born children is said to have prevailed immemorially, and to prevail still. As the institutions of that empire are never changed, its situation is never improved.
Tacitus records it to the honour of the Germans, that, among them, to kill infants newly born was deemed a most flagitious crime. Over them, adds he, good manners have more power, than good laws have over other nations. This shows, that, in his time, the restraints of law began to be imposed on this unnatural practice; but that its inveteracy had rendered them still inefficacious.
Under the Roman commonwealth, no citizen of Rome was liable to suffer a capital punishment by the sentence of the law. But at Rome, the son held his life by the tenure of his father’s pleasure. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the publick and private rights of a person: in his father’s house, he was a mere thing;z confounded, by the laws, with the cattle, whom the capricious master might alienate or destroy, without being responsible to any tribunal on earth.
The gentle Hindoo is laudably averse to the shedding of blood; but he carries his worn out friend or benefactor to perish on the banks of the Ganges.
With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb.a By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.
The grades of solicitude, discovered, by the law, on the subject of life, are marked, in the clearest manner, by the long and regular series of the different degrees of aggression, which it enumerates and describes—threatening, assault, battery, wounding, mayhem, homicide. How those different degrees may be justified, excused, alleviated, aggravated, redressed, or punished, will appear both in the criminal and in the civil code of our municipal law.
Thus much concerning the natural rights of man in what has been termed his unrelated state. I come now to specify and to consider those peculiar relations, by virtue of which a man is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties.
I begin with marriage, which forms the near relation between husband and wife.
Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated in holy writ, we shall find, that to the institution of marriage the true origin of society must be traced. By that institution the felicity of Paradise was consummated; and since the unhappy expulsion from thence, to that institution, more than to any other, have mankind been indebted for the share of peace and harmony which has been distributed among them. “Prima societas in ipso conjugio est,”2 says Cicero in his book of offices;b a work which does honour to the human understanding and the human heart.
The most ancient traditions of every country ascribe to its first legislators and founders, the regulations concerning the union between the sexes. The honour of instituting marriage among the Chinese, is assigned to their first sovereign,c Fo-hi.3 In order to render this great foundation of society respectable, he adjusted, as we are told,d the ceremonies, with which the contracts of marriage were accompanied.
Among the Egyptians, the law of marriage is said to have been established by Menes,e4 whose name is transmitted to us as that of their first king. The history of Abrahamf affords a striking instance of the profound respect, which in his day was paid, in Egypt, to the conjugal union.
Cecrops has been already mentioned as the first great legislator of the Athenians, and as borrowing his institutions from those of the Egyptians. Accordingly we are informed, that he established, at Athens, the laws and ceremonies of marriage, in the same manner as they were observed and practised in Egypt. Polygamy was not permitted.g These regulations are described as the sources of virtues and enjoyments. They evinced the advantages of decency, the attractions of modesty, the happiness of loving, and the necessity of constancy in love.h
The founder of Rome made, concerning marriages, a law, which, on many accounts, will deserve our particular attention. It was expressed in these words: “let every wife, who by the holy laws of marriage falls into the power of a husband, enter with him into a community of goods and sacrifices.”i
As marriage has been instituted by the first, it has always been encouraged by the wisest legislators. By the law of Moses,k a man, during one year after his marriage, was exempted from publick burthens, and from going to war. A regulation nearly similar, as we are told, was established by the Incas of Peru.l The jus trium liberorum,5 introduced by the prudent policy of Augustus, was a permanent inducement to matrimony at Rome.m
Legislators have, with great propriety, carried their views still farther; they have provided, as far as municipal laws can provide, against the violation of rights, indispensably essential to the purity and harmony of the matrimonial union. Treachery, upon any occasion, is sufficient to stain a page in the annals of life; but perfidy against the solemn engagements of marriage obliterates the impression of happiness from every subsequent part of the conjugal history. Upon this subject, however, so interesting to the finest sentiments and emotions of the heart, every thing, that might be wished, cannot, we fear, be expected from the operation of human laws. Much must be left to the influence of that legitimate honour, which we have described as the inseparable friend and companion of virtue. From the bastard honour, which we likewise described, it would be ridiculous, in this case, to hope for any assistance. In this case, as in many others, that honour glories in its shame.
Concerning the ancient Germans, Tacitus, in his short but masterly account of their manners,n informs us, that among them the laws of marriage were rigidly observed; and that no part of their conduct was more exemplary.
We have seen the first institution of marriage among the Athenians and the Romans: a concise view of its history will be instructive and interesting.
In the heroick ages of Greece, we are told,o the rights of beauty and feminine weakness were highly respected and tenderly observed. The simplicity of those ages was equally remote from the cruel tyranny of savages, which condemns the fair sex to servitude, and the sordid selfishness of luxury, which considers them solely as instruments of pleasure. Hence those affecting scenes so exquisitely described by Homer, which, in the interviews of Hector and Andromache, exhibit the most striking image of nuptial felicity and love. But this beautiful picture of ancient manners was soon miserably defaced; and, in the degenerate periods of Greece, the fair sex were as much neglected and despised, as they had been loved and admired in the heroick ages.
In those degraded times, of which I am now obliged to speak, no pains were employed to render the Grecian females agreeable members of society, in any one part of their lives. Education was either entirely withheld from them; or it was directed to such objects as were fitted to contract and debase, instead of elevating and enlarging the mind. When they were grown up, they were thrown away in marriage, without being consulted in the choice; and by entering into this new state, they found the severe guardianship of a father succeeded by the absolute dominion of a husband. At this period, even the laws of Athens countenanced this unworthy tenour of conduct: to secure the fortune of the husband was deemed an object of greater importance, than to protect the person and honour of the wife, from the outrage so peculiarly dreaded by female virtue.p
Let us now turn our attention to Rome. You recollect, that, by a law of Romulus, “the wife fell into the power of the husband.” The law, which, on the whole, was very susceptible of a construction mild and generous, received from this part of it an interpretation most unwarrantable and severe. By this interpretation, coloured with the unnatural fiction, that, on a solemn marriage, the wife was adopted by the husband, he acquired over her all the tremendous plenitude of Roman paternal power. This extreme, as is usual, soon produced its opposite; and female servitude was exchanged for female licentiousness. The solemnities of the ancient nuptials were declined, in order to avoid the odious consequences superinduced upon them by the construction and fiction of law; and the parties, without losing, on either side, their independence or their name, subscribed definite and stipulated articles of a marriage contract. Their cohabitation, and the appearances of a common interest which they exhibited, were received, without investigation, as sufficient evidence of a regular and solemn marriage. Hence that detestable train of conjugal vice, infidelity, rage, rancour, and revenge, with which so many volumes of the Roman story are crowded and disgraced.
By the precepts of christianity, and the practice of the christians, the dignity of marriage was, however restored.
In the eye of the common law, marriage appears in no other light than that of a civil contract: and to this contract the agreement of the parties, the essence of every rational contract, is indispensably required. If, therefore, either of the parties is incapable of agreeing, is unwilling to agree, or has not, in fact, as well as in ability and will, concluded the agreement; the marriage cannot be established by the principles of the common law.
Disability to contract marriage may arise from immature age. A man, as we have seen before,q may consent to marriage at fourteen; a woman, at twelve years of age. If, before those respective ages, a marriage take place, either party may, at the age of consent, but not before or after that age, disagree, declare the marriage void, and marry again: but if, at the age of consent, they agree to continue together, there is no occasion for another marriage between them; that which has taken place being deemed a marriage, though only an inchoate and imperfect one. If, at the time of the inchoate marriage, one of the parties is, and the other is not of the age of consent, when the last arrives at that age, the first as well as the last may disagree; for in a contract of marriage, both or neither must be bound.r
Disability to contract marriage may arise from the want of reason. Consent, as has been already observed, is essential to this, as to every other contract; but those who enjoy not a competent share of reason, are incapable of giving consent.s
By a law of Pennsylvania, certain degrees of consanguinity and affinity, specified in a table subjoined to the law, are disabilities to contract matrimony: and all marriages within those degrees are declared to be void. I refer you to the table specifying the degrees.t
One marriage undissolved, forms a disability to contract another. In such a case the second marriage is void as well as criminal.u
When to the ability and will to contract, an actual contract is added; then the marriage is complete.
Before the time of Pope Innocent the third,7 there was no solemnization of marriage in the church; but the man came to the house where the woman inhabited, and led her home to his own house; which was all the ceremony then used.w
By an act of the legislature of Pennsylvania, all marriages, not forbidden by the law of God, shall be encouraged.x In the construction of legacies, it is a general rule, that all conditions are unlawful, which would operate against the liberty of marriage.y
It will be proper, in the next place, to consider the consequences of marriage.
The most important consequence of marriage is, that the husband and the wife become, in law, only one person: the legal existence of the wife is consolidated into that of the husband. Upon this principle of union, almost all the other legal consequences of marriage depend. This principle, sublime and refined, deserves to be viewed and examined on every side. Among human institutions, it seems to be peculiar to the common law. Peculiar as it is, however, among human institutions, it seems not uncongenial to the spirit of a declaration from a source higher than human—“They twain shall be one flesh.”
Even of the common law, this was not always a principle. We are told by the learned Selden, that the Saxon wives were never one with their husbands; nor were they, as wives, under the view of the frank-pledge: a Saxon wife was obliged to give pledge by her friends, that she would do no wrong. She passed as an appurtenant to her husband, rather than one in unity with him: and her estate was rather appurtenant to her than to him: for if she failed in her good carriage to her husband, she was to make him amends out of her own estate; and if that was insufficient, then her pledges were to make satisfaction for her.z This interposition of friends between husband and wife, in matters respecting either their conduct or their claims, seems alien to the delicacy and nearness of the matrimonial connexion. On very pressing emergencies, indeed, it is necessary that the law should interfere, and on such emergencies we shall see that it does interfere; but the general presumption and the universal wish ought to be, that, between husband and wife, there subsist or may subsist no difference of will or of interest. Such accordingly, during many centuries past, has been the language of the law. Bracton, in the reign of Henry the third, informs us, that “husband and wife are as one person, because they are one flesh and blood.”a Littleton, whose sayings are of such high authority, tells us repeatedly, “that the husband and the wife are but one person in the law.”b
In pursuance of this principle, a crime, except treason and murder,c committed by the husband and wife, shall be charged against him solely; because the law will suppose that she acted under his influence or coercion. In pursuance of the same principle, a husband and wife cannot be witnesses for or against one another: if they were permitted to give testimony for one another, one maxim of the law would be violated—No one can be a witness in his own cause: if they were permitted to give testimony against one another, another maxim of the law would be violated—No one is obliged to accuse himself.
But, as has before been intimated, whenever urgent emergencies arise; whenever any outrage is threatened or committed against the peace or safety of society, as well as against the refined rules of the conjugal union; the law will interpose its authority, and, though it will not order, because it cannot enforce its orders for observing the latter, it will order, because it can enforce its orders for preserving the former.
The refined delicacy of the maxim—that husband and wife are considered as one person by our law—appears now in a beautiful and striking point of view. The rights, the enjoyments, the obligations, and the infelicities of the matrimonial state are so far removed from her protection or redress, that she will not appear as an arbitress; but, like a candid and benevolent neighbour, will presume, for she wishes, all to be well.
To the other rights and to the other duties of a marriage life, we must extend the observations which we have already applied to one of them. Reliance must be placed on that honour, which is the inseparable friend and companion of virtue.
I have spoken concerning those consequences of marriage, which relate to the persons of the husband and wife: the consequences which relate to their property, will be fully considered under the second great division of my system: you observe, that I carefully avoid the blending of the two divisions.
By that event which closes the scene of all sublunary enjoyments, marriage is dissolved: it may be dissolved sooner—by divorce.
To the law of England, two kinds of divorce are known—a divorce from the bed and the table—and a divorce from the chains—the metaphor is proper on this occasion—a divorce from the chains of matrimony. The propriety of the first kind, I am, I confess, at a loss to explain: that of the second kind is frequently obvious. When, as we have seen, the impression of happiness must be obliterated from every succeeding part of the conjugal history, why should any more blackened pages be added to the inauspicious volume? But of causes which are slight or trivial, a divorce should, by no means, be permitted to be the effect. When divorces can be summoned to the aid of levity, of vanity, or of avarice, a state of marriage becomes frequently a state of war or stratagem; still more frequently, a state of premeditated and active preparation for successful stratgems and war. Such was the case in ancient Rome. “Passion, interest, or caprice,” says the Historian of her falling state,8 “suggested daily motives for the dissolution of marriage; a word, a sign, a message, the mandate of a freeman declared the separation; the most tender of human connexions was degraded to a transient society of profit or pleasure.”d
Juv. sat. VI.20.
Non consulum numero, sed maritorum annos suos computant.10
Sen. de. Benef. III.16.
Both these remarks are levelled particularly at the female sex: but who drew the picture, in which the lion was injuriously represented?
Cicero, after having said, as we have seen, “prima societas in ipso conjugio est,” adds, “proxima in liberis.”11 I consider, in the next place, the relation of parent and child.
The transition is, indeed, a natural one. The sentiments of parental affection are generally warm and tender, in proportion to those of conjugal love. The sentiments of filial duty are generally sincere and respectful, in proportion to those of parental affection.
It is the duty of parents to maintain their children decently, and according to their circumstances; to protect them according to the dictates of prudence; and to educate them according to the suggestions of a judicious and zealous regard for their usefulness, their respectability, and their happiness.
The formidable power of a Roman father is unknown to the common law. But it vests in the parent such authority as is conducive to the advantage of the child. When it is necessary—and a real necessity exists much more rarely than is often imagined—a moderate chastening may be administered; but every milder means should be previously used. Part of his authority he may delegate to the person intrusted with his child’s education:e that person acts then in the place, and he ought to act with the disposition, of a parent. The legal power of a father ceases, when the child attains the age of twenty one years.
But,—for we now turn to the duties of children—as obedience and subjection to their parents are due from them during their minority; honour and reverence are naturally and justly expected from them ever afterwards. If it become necessary, the child should, according to his circumstances, maintain the parent: ’tis but a natural and grateful return for the maintenance, which the parent has given to the child.
The decent reserve which the common law has shown, with regard to the relation between parent and child, should be admired, and may be accounted for on the same principles, which were observed under the relation of husband and wife. The civil law interposed in the nice feelings and tender transactions of both relations, with a rude and indelicate management. In that law, we find an enumeration of fourteen different reasons, for which a father may disinherit his child. Would it not have been much more natural, to have left, as the common law has left, this subject to the decision of that judge, which holds its tribunal in every parent’s breast?
But, here as on former occasions, I refer the questions of property—and there are very important ones—arising from this relation, to the full discussion, which will be given under the second division of my system.
A bastard is one who is born out of lawful marriage. By law, he is considered quasi nullius filius.12 But surely it is the natural duty of his parents to maintain, to protect, and to educate him.
The rules which govern the relation between a father and his child, govern, but in an inferiour degree, and for a shorter time, that relation, which is substituted in the place of the other, between a guardian and his ward. On this subject, therefore, it will not be necessary to descend into particulars.
I come now to examine the relation between a master and his servants.
Slavery, or an absolute and unlimited power, in the master, over the life and fortune of the slave, is unauthorized by the common law. Indeed, it is repugnant to the principles of natural law, that such a state should subsist in any social system. The reasons, which we sometimes see assigned for the origin and the continuance of slavery, appear, when examined to the bottom, to be built upon a false foundation. In the enjoyment of their persons and of their property, the common law protects all. With regard, however, to any right, which one man may have acquired to the personal service of another, the case is very different. This right the common law will support.f He, to whose service this right is acquired, is only in the same state of subjection, to which every servant and apprentice is obliged, and finds it his interest, to submit.
The contract between a master and a servant arises upon the hiring. If a servant is retained generally, without expressing any limited time, the law will construe it to be for a year:g the reasonable foundation of this rule is, that, through the revolutions of the seasons, equality shall be preserved in the contract; that the master shall not have it in his power to dismiss the servant when there is little work to be done; nor the servant have it in his power to depart when there is much. The contract, however, may be made for any term longer or shorter than a year.h If, during the term of the contract, the servant become sick, this is a condition incident to humanity. In his sickness, the master is bound to take care of him, and provide for him; nor can a deduction of wages be made for the time, during which he is detained from service.i
If a servant marry, the marriage dissolves not the contract to serve:k if, without any reasonable cause, he depart from his service, within the term, for which he is retained; he can recover no wages.l A contract for service is, on both sides, personal, and is discharged by the death of either of the parties.m This is the rule at the common law.
A master, we are told, may justify an assault in defence of his servant; and a servant, in defence of his master; the former, because he has an interest in the service of the latter; the latter, because the defence of the former is considered as part of the consideration, for which wages are stipulated and received.n The law is unquestionably so as is here stated: the reasons assigned for it, I am inclined to believe, are founded on principles much too narrow. The defence of one’s own person is a part of the law of self preservation. The defence of the person of another is, I think, a part of the law of humanity. This point, however, which is of a very general importance to the peace and security of society, will merit an investigation in another place.
The common law, retaining the refined delicacy which we have observed oftener than once, will not, without strong necessity, inspect or interpose in the interiour government of a family. That sufficient authority, however, may exist to preserve order in the domestick department—a department of mighty moment to human happiness—the law invests the master with a power to correct, but moderately, his servant or apprentice, for negligence or for other misbehaviour. We have seen that “sine imperio, nulla domus stare potest.”o13 Besides; in the regulation which the law has drawn concerning an atrocious outrage, in which she found it necessary to interpose, she has with a pencil exquisitely fine, but whose strokes can be traced by a discerning eye, marked a line of general direction for the relative rights and duties of a master and servant. From the latter to the former, she expressly requires a species, though an inferiour species, of allegiance: from the former to the latter, she, by a necessary consequence, strongly inculcates a species, though an inferiour species, of protection. These remarks will receive illustration, when the crime of petty treason shall come under our view.
Apprentices are a species of servants. They are usually bound for a term of years, to serve and to be instructed by their masters in their profession or trade.
Persons under the age of twenty one years cannot, by the common law, bind themselves apprentices, in such a manner as to become liable to an action for departing from their service, or for other breaches of their indentures. For this reason, it is necessary that the parent, guardian, or some friend of the apprentice be bound for the faithful discharge of his duty.p But it is not every minor, who has such connexions, willing to be bound for him.
By the custom of London, an infant, unmarried and above the age of fourteen years, may bind himself apprentice to a freeman of London; and the covenants in the indenture of apprenticeship shall be as valid, as if the apprentice had been of full age.q The spirit of this custom has been adopted and enlarged by the legislature of Pennsylvania. A minor, bound an apprentice with the assent of the parent, the guardian, or the next friend, or with the assent of the overseers of the poor, and approbation of any two justices, is bound as fully as if of age at the time of making the indentures. But an apprenticeship under this very excellent law must expire, in the case of a male, at twenty one, in the case of a female, at eighteen years of age.r
To qualify one for the skilful and successful exercise of a trade or profession, an apprenticeship is certainly useful; but, by the common law, it is not necessary. It was resolved, as we are informed in one of the reports of my Lord Coke, that, at the common law, no man can be prohibited from exercising his industry in any lawful occupation; for the law hates idleness, the mother of all evil, and especially in young men, who, in their youth, which is their seed time, ought to learn lawful trades and sciences, which are profitable to the commonwealth, and of which they themselves may reap the harvest in their future years. Besides; the common law abhors all monopolies, which forbid any from working in any lawful trade. If he who undertakes to work is unskilful, his ignorance is his sufficient punishment; for “quilibet quaerit in qualibet arte peritos;”14 and if, in performing his work, he injures his employer, the law has provided an action to recover damages for the injury done.s To every monopoly, we are told by the same book in another place,t there are three inseparable incidents against the commonwealth. 1. The price of the commodity is raised. 2. The quality of the commodity is debased. 3. Those who formerly maintained themselves and their families by the same profession or trade, are impoverished, and reduced to a state of beggary and idleness.
Besides apprentices, and those to whom the name of servant is appropriated in the language of common life, the relation of servant is extended, by the language and by many of the rules of the law, to others in a superiour ministerial capacity—to bailiffs, to stewards, to agents, to factors, to attornies, and to the masters of vessels considered in their relation to the owners of them.u
Of many acts of the servant, the master is entitled to receive the advantage: of many others, he is obliged to suffer or to compensate for the injury. In each series of cases—it would be, here, improper to attempt an enumeration of particulars—In each series of cases, the principle is the same. Whatever is done by the servant, in the usual course of his business, is presumed, and fairly presumed, to be done by the command, or the authority, tacit or express, of the master; whatever is done by the master’s command, is considered, and justly considered, as done by the master in person: “Qui facit per alium, facit per se.”15
Thus much concerning the relation between master and servant: and thus much concerning the component parts of that important and respectable, though small and sometimes neglected establishment, which is denominated a family. “Id autem est”—says Cicero,v in the fine and just passage already cited oftener than once—“id autem est principium urbis, et quasi seminarium reipublicae.”16 It is the principle of the community; it is that seminary, on which the commonwealth, for its manners as well as for its numbers, must ultimately depend. As its establishment is the source, so its happiness is the end, of every institution of government, which is wise and good.
In the introduction to my lecturesw I told my hearers, that “publick law and publick government were not made for themselves;” but that “they were made for something better;” that “I meant society;” that “I meant particularly domestick society.” Perhaps, it was then thought, by some, that all this was introduced merely for the sake of an encomium—but, by the way, an encomium severely just—with which it was accompanied. In the regular course of my system, the sentiment has now undergone a scrutinizing analysis in the most minute detail. I can appeal to such, if any such, who thought otherwise then—I can appeal to all, who have formed their opinion now, whether the sentiment, in all its parts, and in all its objects too, is not founded in sound politicks and genuine philosophy.
In digesting a system of English law a little more than a century ago, it would have been necessary to notice and explain another domestick relation—not, indeed, founded in nature—that of lord and villain. Of the feudal city, however, we can still recollect the exteriour battlements and towers, cumbrous, but disproportioned and insecure, and the interiour buildings and halls, spacious, but comfortless and inconvenient. In ruins it now lies. With sentiments very different from those of regret, we can exclaim over it—fuit servitus.x17
I have now done with considering the peculiar relations of man in a state of society, independent of civil government. But in that state, as he bears peculiar relations to some, so he bears a general relation to all. From that general relation, rights and duties result. His rights are, to receive the fulfilment of the engagements which are made to him, and to be free from injury to his peculiar relations, to his property, to his character, to his liberty, to his person. His duties are, to fulfil the engagements, which he has made; and to do no injury, in the same extensive meaning, in which he would wish and has a right to suffer none.
In a former lecture,y when I delineated at large the principles and the character of the social man, these rights and duties received their illustration, and were shown to be laid deeply in the human frame. To your recollection of what was then said, I beg leave to refer you. These rights and duties are indeed, as has been observed, great pillars on which chiefly rest the criminal and the civil codes of the municipal law. It would surely be preposterous to undermine their foundation, with a view to give strength or stability to what they support—to unfix what rests on the immovable basis of nature, and to place it on the tottering institutions of man.
I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.
The defence of one’s self, justly called the primary law of nature,z is not, nor can it be abrogated by any regulation of municipal law.a This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation—of his wife, of his parent, of his child, of his master, of his servant:b nay, it extends to the person of every one, who is in danger;c perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice.
The particular occasions on which the defensive principle may be exercised, and the degrees to which the exercise of it may be carried, will appear in subsequent parts of my lectures: for instead of being disavowed, it is expressly recognised by our municipal institutions.
As a man is justified in defending, so he is justified in retaking, his property, or his peculiar relations, when from him they are unjustly taken and detained. When and how this recaption may be made, will also appear in the proper places. For this redress, dictated by nature, is also recognised by municipal law.
Under the same description, the right of abating or removing nuisances may, in many instances, be classed.
This long investigation concerning natural rights and natural remedies, I conclude by answering the question, with which I introduced it: man does not exist for the sake of government, but government is instituted for the sake of man. The course of it has naturally led me to consider a number of interesting subjects, in a view somewhat different, perhaps, from that, in which we see them considered in some of our law books; but in a view perfectly consonant to the soundest rules and principles of our law.
THE END OF THE SECOND VOLUME.
[a. ]Refl. on Fr. Rev. 47.
[b. ]1. Bl. Com. 127.
[c. ]1. Bl. Com. 125. 126.
[d. ]Ante. vol. 1. p. 638.
[e. ]Refl. on Fr. Rev. 47.
[f. ]B. 1. c. 1. s. 8.
[g. ]1. Bl. Com. 127.
[h. ]Id. 128.
[i. ]Id. 129.
[k. ]Refl. on Fr. Rev. 47.
[l. ]1. Bl. Com. 127. 128.
[m. ]Refl. on Fr. Rev. 24.
[n. ]Refl. on Fr. Rev. 9.
[o. ]Refl. on Fr. Rev. 12.
[p. ]Id. 13.
[q. ]Id. 14.
[r. ]Ante. vol. 1. p. 444.
[1. ]Wilson quotes Shakespeare, apparently from memory, with slight inaccuracies. The first two lines of the passage are from Richard II (I. i. 177–79); the last five are from Othello (III. iii. 161–65).
[s. ]Bec. c. 9.
[t. ]Ante. vol. 1. p. 636, 638.
[u. ]Sp. L. b. 3. c. 6.
[v. ]Vol. 1. p. 638.
[w. ]4. Anac. 161. 162.
[x. ]3. Anac. 4.
[y. ]Id. ibid.
[z. ]8. Gibbon. 52.
[a. ]1. Bl. Com. 129.
[2. ]The first bond of society is marriage.
[b. ]L. 1. c. 17.
[c. ]1. Gog. Or. L. 22.
[3. ]Fu Hsi (c. 2852 bc) was the mythical first emperor of China.
[d. ]3. Gog. Or. L. 313.
[e. ]1. Gog. Or. L. 22.
[4. ]Menes (c. 3100–3000 bc), an Egyptian pharaoh who was perhaps the founder of the first dynasty, is credited by many scholars for uniting Upper and Lower Egypt.
[f. ]Gen. xii. 19.
[g. ]2. Gog. Or. L. 19.
[h. ]1. Anac. 7.
[i. ]1. Rol. R. H. 32.
[k. ]Deuter. xxiv. 5.
[l. ]1. Gog. Or. L. 23.
[5. ]The extraordinary rights, privileges, and immunities that the Roman law accorded a father of three or more children.
[m. ]Mont. Sp. L. b. 23. c. 21.
[n. ]C. 18.
[o. ]1. Gill. 52. 56.
[p. ]Gill. Lys. and Isoc. Int. c.
[q. ]Ante. p. 844.
[r. ]1. Ins. 79. a. b.
[s. ]1. Bl. Com. 438.
[t. ]1. Laws Penn. 46.
[u. ]1. Bl. Com. 436.
[6. ]A meeting of the minds, and not cohabitation, constitutes a marriage.
[v. ]1. Ins. 33.
[7. ]Lotario de’ Conti di Segni (c. 1161–1216) served as Pope Innocent III from 1198 to 1216.
[w. ]3. Bac. 575.
[x. ]1. Laws. Penn. 36.
[y. ]Swin. 266.
[z. ]Bac. on Gov. 65.
[a. ]1. Ins. 187 b.
[b. ]S. 168. 291.
[c. ]1. Bl. Com. 444.
[8. ]Edward Gibbon (1737–1794) was author of The History of the Decline and Fall of the Roman Empire (1776).
[d. ]8. Gibbon. 62
[9. ]Thus eight husbands are made in the space of five autumns.
[10. ]They compute their years not by the number of consuls, but by the number of their husbands.
[11. ]The first bond of society is marriage, the next, our children.
[e. ]1. Bl. Com. 453.
[12. ]As if no offspring.
[f. ]1. Bl. Com. 423. 425.
[g. ]1. Ins. 42. b.
[h. ]1. Bl. Com. 425.
[i. ]2. Burr. 948.
[k. ]F. N. B. 168.
[l. ]Wood. Ins. 51.
[m. ]Str. 1267. Wood. Ins. 51.
[n. ]1. Bl. Com. 429.
[o. ]Cic. de leg. l. 3.
[13. ]Without the power to command, no house is able to stand.
[p. ]S. Bac. 547.
[q. ]Id. 347.
[r. ]1. Laws Penn. 540, s. 1.
[14. ]Experts are sought in my occupation.
[s. ]11. Rep. 53. b. 54.
[t. ]Id. 86. b.
[u. ]3. Bac. 544.
[15. ]He who acts through another, acts by or for himself.
[v. ]De Off. l. 1. c. 17.
[16. ]Moreover it is the beginning of the city, and the nursery, as it were, of the commonwealth.
[w. ]Vol. 1. p. 452.
[x. ]Fuit Ilium.
[17. ]Slavery is a thing of the past.
[y. ]Vol. 1. p. 627. 628.
[z. ]Est igitur, judices, haec non scripta, sed nata lex; quam non dedicimus, accepimus, legimus; verum ex natura ipsa arripuimus, hausimus, expressimus; ad quam non docti, sed facti, non instituti, sed imbuti sumus; ut si vita nostra in aliquas insidias, si in vim, si in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis: silent enim leges inter arma; nec se expectari jubent, cum ei qui expectare velit. ante injusta poena luenda sit, quam justa repetenda.18 Cic. pro Mil.
[a. ]3. Bl. Com. 4.
[b. ]Id. 3.
[c. ]1. Haw. 131.
[z. ]Est igitur, judices, haec non scripta, sed nata lex; quam non dedicimus, accepimus, legimus; verum ex natura ipsa arripuimus, hausimus, expressimus; ad quam non docti, sed facti, non instituti, sed imbuti sumus; ut si vita nostra in aliquas insidias, si in vim, si in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis: silent enim leges inter arma; nec se expectari jubent, cum ei qui expectare velit. ante injusta poena luenda sit, quam justa repetenda.18 Cic. pro Mil.
[18. ]There exists, Judges, this law which is not written, but inborn; we have not learned it, received it, or read it, but from nature herself we have snatched, imbibed, and extorted it; a law to which we are not trained, but in which we are made; in which we are not instructed, but with which we are imbued; the law, namely, that whenever our life falls into some ambush, is attacked, or is set upon by brigands or enemies, there is every honest reason for saving one’s self: for amid arms the laws are silent, and they do not order a man to wait around, since he who will wait must suffer an unjust penalty before he obtains a just retribution.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2. Chapter: CHAPTER XI.: Of Citizens and Aliens.
Accessed from oll.libertyfund.org/title/2074/166650 on 2008-08-21
Let us proceed to investigate still farther the component parts of which civil government and all its subordinate establishments consist. They consist of citizens.
I have already observeda that the social contract is a contract of a peculiar kind; that when correctly analyzed, it is found to be an assemblage of agreements equal, in number, to the number of individuals who form the society; and that, to each of those agreements, a single individual is one party, and all the other individuals of the society are the other party.
The latter party I have considered heretofore; and have called it the people. The former party I am now to consider; and, in order to avoid confusion, I call it, in this discussion, the citizen; and when I shall have occasion to refer to more subordinate agreements than one, I shall call the individuals, parties to them, by the name of citizens.
I know that the term citizen is often applied to one of the more numerous party—to one of the people: and I shall be obliged to take the description of a citizen from the character which he supports as one of the people. But you will easily perceive, that the same person may, at different times, act or be viewed in different characters; and though his description be taken from one of them, the account of his duties and of his rights too may, on a particular occasion, be referred to the other. This I have chosen to do, rather than to introduce an unknown phrase, or to use a known phrase in a new signification. Besides, the expression is frequently employed also in the sense in which I now use it. “Generally speaking,” says the great political authority,b Aristotle, “a citizen is one partaking equally of power and of subordination.”
A citizen then—to draw his description as one of the people—I deem him, who acts a personal or a represented part in the legislation of his country. He has other rights; but his legislative I consider as his characteristick right. In this view, a citizen of the United States is he, who is a citizen of at least some one state in the Union: for the members of the house of representatives in the national legislature are chosen, in each state, by electors, who, in that state, have the qualifications requisite for electors of the most numerous branch of the state legislature.c In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen.d
I have, on another occasion,e traced the description of a citizen in every other state of the Union: to your recollection of that investigation, and to the constitutions of the several states, I now refer you.
When a man acts as one of the numerous party to the agreements, of which I have taken notice; it is his right, according to the tenour of his agreements, to govern; he is one of the people. When he acts as the single party to that agreement, which he has made with all the other members of the society; it is his duty, according to the tenour of his agreement, to obey; he is a single citizen. Of this agreement, indeed, it is impossible to ascertain all the articles. From the most obvious deduction of reason, however, one article may be specified, beyond all possibility of doubt. This article, of prime importance, is—that to the publick will of the society, the private will of every associated member must, in matters respecting the social union, be subordinate and submissive. The publick will of the society is declared by the laws. Obedience, therefore—civil obedience—obedience to the laws and to the administration of the laws—this is a distinguishing feature in the countenance of a citizen, when he is seen from this point of view.
That men ought to be governed, seems to have been agreed on all hands: the reason is, that, without government, they could never attain any high or permanent share of perfection or happiness. But the question has been—by whom should they be governed? And this has been made a question, by reason of two others—by whom can they be governed?—are they capable of governing themselves?
To this last question, Mr. Burke,1 in the spirit of his late creed,f has answered in the negative. “Society,” says he, “requires not only that the passions of individuals should be subjected, but that even in the mass and body as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done by a power out of themselves.” This negative answer has been, from time immemorial, the strong hold of tyranny: and if this negative answer be the true one, the strong hold of tyranny is, in fact, impregnable to all the artillery of freedom. If men should be governed; and if they cannot govern themselves; what is the consequence? They must be governed by other masters.
An opinion, however, has, by some, been entertained, that the question, which I last mentioned, may receive an answer in the affirmative. Men, it has been thought, are capable of governing themselves. In the United States, this opinion, which heretofore rested chiefly on theory, has lately been put in a train of fair practical experiment. That this experiment, to human happiness so interesting, may be crowned with abundant and glorious success, is, of all things in this world, the “consummation most devoutly to be wished.”
But to its glorious and abundant success, the obedience of the citizens is of a necessity, absolute and supreme. The question, which has been proposed—the question, in the negative answer to which, tyranny has triumphed so long and so generally—the question, concerning which philosophers and patriots have indulged, and been pleased with indulging, a contrary sentiment—the question, which, in the United States, is now put upon an experiment—this all-important question is—not merely nor chiefly—are men capable of governing? Of this, even tyrants will admit the affirmative; and will point to themselves as living proofs of its truth. But the question is—are men capable of governing themselves? In other words; are they qualified—and are they disposed to be their own masters? For a moral as well as an intellectual capability is involved in the question. In still other words; are they qualified—and are they disposed to obey themselves? For to government, the correlative inseparable is obedience. To think, to speak, or to act, as if the former may be exercised, and, at the same time, the latter may not be performed, is to think, to speak, or to act, in a manner the most contradictory and absurd.
By a long and minute deduction, I proved, in a former lecture,g that, on the true principles of freedom, a man is the only human power, by whom he himself can be bound. It requires but a very small variation of phrase, and none of sentiment, to say, that on the true principles of freedom, man is the only human power, by whom he himself can be governed.
Are we made so waywardly, that what, in principle, is true and right, must, in practice, be false and wrong? Surely not.
Is the safety of man endangered by obedience? What can be a source of greater security, than to be governed only by a law, which has been made by himself, and by others, with whom he participates a general identity of interest, and a perfect equality of duties and of rights?
Is the freedom of man infringed by performing the service of obedience to such a law, made as has been mentioned? This service bears, we think, a resemblance as near as, being human, it can bear, to that service, which, with a propriety truly striking and strong, is denominated “perfect freedom.”
Is the dignity of man degraded by observing a law? The Supreme of Being!—he himself worketh not without a rule!
In a moral view, self government increases, instead of impairing, the security, the liberty, and the dignity of the man; in a political view, self government increases, instead of impairing, the security, the liberty, and the dignity of the citizen.
Attend now to the result of the whole.—In a free and well constituted government, the first duty of its every member is—obedience to the laws. That they be true and faithful to themselves, is the allegiance, which a legitimate republick requires from her citizens: to themselves they cannot be true and faithful, unless they obey as well as make the laws—unless, in the terms in which a citizen has been defined, they partake of subordination as well as of power.
As a citizen of a republican government owes obedience to the laws; so he owes a decent, though a dignified respect to those who administer the laws. In monarchies, there is a political respect of person: in commonwealths, there should be a political respect to office. In monarchies, there are ranks, preeminences, and dignities, all personal and hereditary. In commonwealths, too, there are ranks, preeminences, and dignities; but all official and successive. In monarchies, respect is paid without a prospect of return. In commonwealths, one may, next year, succeed, as an officer, to the respect, which, this year, he pays as a citizen. The dignities of office are open to all.
You will be pleased to hear, that, with regard to this as well as to many other subjects, we have renewed, in our governments, the principles and the practice of the ancient Saxons. Between dignity and duty, no separation was made by them. In the early period of the Anglo-Saxon state, the allodial proprietors were numerous; their estates were generally small; and all were understood to be of the same rank and condition. Some, indeed, were distinguished above others by their character and their talents; but the superiority derived from this source was accompanied with no legal preeminence or power.h
So likewise it was in the heroick ages of Greece: no distinction was then known among men, except the distinction, truly honourable, which arose from a difference of abilities and merit.i
Titles of nobility in England, though now merely personal, were, in their origin, altogether official. The heretoch or duke was intrusted with a military department: the marquis was appointed to guard the frontiers or marches of the country: the alderman or earl was, as we formerly saw, the first civil officer of the shire. In the juridical history of England, the first arbitrary title of honour, without the shadow of office or duty annexed to it, makes its appearance so late as the reign of Henry the sixth.2
Under a republican government, it is prudent as well as proper—it is the interest as well as the duty of the citizens, to show a political respect for office. In the government they have an interest: in every office and department of the government they have an interest: this interest requires, that every department and every office should be well filled: in a commonwealth; respect attached to office is frequently the principal inducement to its acceptance by those, who are qualified to fill it well.
On the citizen under a republican government, a third duty, more severe, it may be thought, than either of the former, is strictly incumbent. Whenever a competition unavoidably takes place between his interest and that of the publick, to the latter the former must be the devoted sacrifice. By the will and by the interest of the community, every private will and every private interest must be bound and overruled. Unless this maxim be established and observed; it is impossible that civil government could be formed or supported. Fortunate, however, it is, that in a government formed wisely and administered impartially, this unavoidable competition can seldom take place, at least in any very great degree.
If the sacrifice, which I have mentioned, is demanded and enforced by the publick, when the competition does not unavoidably take place; or if it is demanded and enforced farther or longer than the existing competition indispensably requires; it is tyranny; it is not government.
The citizen has rights as well as duties: the latter he is obliged to perform: the former he is entitled to enjoy or recover. To that original contract of association, to which, in our reasonings concerning government, an appeal must so often be made, he is a party; nay, in point of right, a party, voluntary, independent, equal. On one side, indeed, there stands a single individual: on the other side, perhaps, there stand millions: but right is weighed by principle; it is not estimated by numbers. From the necessity of the case, as was shown on a former occasion,j if a controversy arises between the parties to the social agreement, the numbers, or a selection from the numbers, must be the judges as well as one of the parties. But, because those of one party must, from the necessity of the peculiar case, be the judges likewise; does it follow, that they are absolved from that strict obligation, by which every judge is sacredly bound to administer impartial justice? Does it follow, that they may, with avidity, listen to all the interested suggestions, the advice of which a party would pursue? When the same person is and must be both judge and party; the character of the judge ought not to be sunk in that of the party; but the character of the party should be exalted to that of the judge.
When questions—especially pecuniary questions—arise between a state and a citizen—more especially still, when those questions are, as they generally must be, submitted to the decision of those, who are not only parties and judges, but legislators also; the sacred impartiality of the second character, it must be owned, is too frequently lost in the sordid interestedness of the first, and in the arrogant power of the third. This, I repeat it, is tyranny: and tyranny, though it may be more formidable and more oppressive, is neither less odious nor less unjust—is neither less dishonourable to the character of one party, nor less hostile to the rights of the other, because it is proudly prefaced by the epithet—legislative. He, who refuses the payment of an honest demand upon the publick, because it is in his power to refuse it, would refuse the payment of his private debt, if he was equally protected in the refusal. He, who robs as a legislator, because he dares, would rob as a highwayman—if he dared.
And are the publick gainers by this? Even if they were, it would be no consideration. The paltry gain would be but as dust in the balance, when weighed against the loss of character—for as the world becomes more enlightened, and as the principles of justice become better understood, states as well as individuals have a character to lose—the paltry gain, I say, would be but as dust in the balance, when weighed against the loss of character, and against the many other pernicious effects which must flow from the example of publick injustice. But the truth is, that the publick must be losers, instead of being gainers, by a conduct of this kind. The mouth, which will not utter the sentiments of truth in favour of an honest demand, may be easily taught to repeat the lessons of falsehood in favour of an unjust one. To refuse fair claims, is to encourage fraudulent ones, upon the commonwealth. Little logick is required to show, that the same vicious principles and dispositions, which oppose the former, will exert their selfish, or their worse than selfish, influence to support the latter.
I think I have proved, that if the sacrifice, which has been mentioned, is demanded and enforced by the publick, when the competition between publick and private interest does not take place, it is tyranny, and not government; folly, and not wisdom. I have added, that if this sacrifice is demanded and enforced farther or longer than the competition indispensably requires, this, too, is tyranny, and not government. This likewise it is easy to prove.
There may be times, when, to the interest, perhaps to the liberty of the state, every private interest and regard ought to be devoted. At those times, such may be the situation and the peril of the commonwealth—for it is in perilous and distracted times, that, by the citizens, extraordinary exertions of duty ought to be made—at those times, a citizen obeys his duty’s and his country’s sacred call; he makes the necessary sacrifices, without expressly stipulating for a recompense: of demanding such a stipulation, the impropriety and the indelicacy may be equally evident. Great sacrifices and great exertions are made with faithfulness and zeal; perhaps, with considerable success. The perils disappear: to distraction and danger, peace and serenity succeed: the commonwealth becomes flourishing and opulent. Ought the sacrifice, which, in the hour of her distress and danger, was made at her call, to be continually enforced and demanded by her, after the danger and distress are over? But this sacrifice is demanded and enforced continually, if this citizen has neither received, nor had it in his power to recover, that recompense, which is just. This case—if such a case has ever happened—may go without any actual redress; but it can never go without well grounded complaint.
There is a sacrifice of another kind, not indeed so great, but, on some occasions, very vexatious, which is required of a citizen under a republican government, unnecessarily, and against his rights. He is frequently pestered with a number of frivolous, ambiguous, perplexed, and contradictory laws. The very best constitutions are liable to some complaints. What may be called the rage of legislation is a distemper prevalent and epidemical among republican governments.
Every article of the social contract cannot be ascertained: some of its leading principles cannot easily be mistaken. One certainly is, that, in a free state, the law should impose no restraint upon the will of the citizen, but such as will be productive of advantage, publick or private, sufficient to overbalance the disadvantages of the restraint: for, after all, we shall find that the citizen was made for the sake of the man. The proof of this advantage lies upon the legislature. If a law is even harmless; the very circumstance of its being a law, is itself a harm. This remark might be remembered, with profit, in the revision of many codes of law. In a word; government and human laws are necessary; if good, they are inestimable, in the present state. It must be admitted, however, that they are a burthen and a yoke: they should resemble that yoke which is easy, and that burthen which is light.
The citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures.
Thus much concerning the duties and the rights of a private citizen.
I am next to treat of aliens.
If this humane maxim had prevailed, as it ought to have prevailed, in the establishment of government, and the formation of laws; the title, which relates to aliens, would have been of an import very different from what we generally find it to be.
The contracted and debasing spirit of monopoly has not been peculiar to commerce; it has raged, with equal violence, and with equal mischief, in law and politicks.
In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed. None but an enemy should be considered as an alien—I mean—as to the acquisition and the enjoyment of property. The rights of citizenship are the rights of parties to the social compact. Even to these, aliens should be permitted to accede upon easy terms.
This subject is of high importance to the United States; to Pennsylvania, in particular.
When I speak of the contracted rule, which prevailed in ancient times, I mean to speak, and I wish to be understood, with some illustrious exceptions. These deserve to be distinctly pointed out. From them, valuable instruction may be drawn.
The general policy of the Egyptians was unfriendly to strangers. It is even said of them, that they were accustomed to kill, or reduce to slavery, all those whom they found upon their coasts; except at one city only, at which they were allowed to land and trade. But Psammeticus,4 one of their princes, observed maxims of a more humane and enlightened nature. He favoured navigation in his seas; he opened his ports to the commerce of all nations; and he granted every kind of encouragement to every one, who would settle in Egypt. Amasis,5 one of his successours, governed, by the same principles, his behaviour towards foreigners. He conferred many benefits upon the Grecians; and even allowed them to erect altars and temples. Under the government of Amasis, it is observed, Egypt was perfectly happy.k
Under the famous Theseus, the rival and the friend of Hercules, strangers were invited to participate the privileges of Athens: from all parts the invitation was accepted; and the new citizens were incorporated with the ancient Athenians. Every thing now, it is added, seemed favourable to his views: he governed a free people with moderation and benevolence; he was esteemed and beloved by the neighbouring nations; and he enjoyed a foretaste of that profound veneration, with which succeeding ages gradually honour the memory of great men.l
This policy, enlarged and generous, was continued in Attica, during many ages after Theseus; and rendered that celebrated country the most frequent resource of the miserable. On a particular occasion, the descendants of the great Hercules, devested of their possessions and driven into banishment by one of the vicissitudes of the times, enjoyed the advantages of the policy introduced by the friend of their ancestor: they were received by the Athenians.m
When it was, in the time of Lysias,6 attempted to contract the foundation of the Athenian government; this part of their ancient policy is, in his oration against that attempt, mentioned with particular respect. “As to myself, I hold it to be the best security for the state, that all have an equal share in the government. When formerly we built walls, and acquired a fleet, and money, and allies; we regarded not these advantages as obtained only for ourselves; we shared them with the Eubaeans,7 by establishing the right of intermarriage. Such were once our principles: by bestowing on strangers the honours of our country, we rendered them our friends: shall we now, by degrading our fellow citizens, render them our enemies? Never let this take place.”n
“By those states,” says my Lord Bacon, in his book concerning the augmentation of the sciences, “who have easily and liberally communicated the right of citizenship, greatness has been most successfully acquired. No commonwealth opened its bosom so wide for the reception of new citizens, as the commonwealth of Rome. The fortune of the empire was correspondent to the wisdom of the institution; for it became the largest on the face of the earth. It was their custom to confer the right of citizenship in the most speedy manner; and in the highest degree too—I mean not only the right of commerce, the right of marriage, the right of inheritance; but even the right of suffrage, and the right to the offices and the honours of the republick. So that it may be said, not that the Romans extended themselves over the whole globe, but that the inhabitants of the globe poured themselves upon the Romans. This is the most secure method of enlarging an empire.”o
My Lord Hale, another lawyer of eminent name, speaks in the same spirit. “The shutting out of aliens,” says he, “tends to the loss of people, which, laboriously employed, are the true riches of any country.”p
In the law of England, there is a distinction between two kinds of aliens—those who are friends, and those who are enemies. Among alien enemies a subdivision is made, or at least was made till lately, which must occasion some degree of astonishment. Alien enemies are distinguished into such as are temporary, and such as are perpetual. Nay; what is more; this line of distinction, certainly never drawn by the peaceful spirit of christianity, is attempted to be marked by the progress of the christian system. “All infidels”—these are the expressions of my Lord Coke in the report of Calvin’s case—“all infidels are perpetual enemies; the law presumes not that they will be converted; between them, as with the devils, whose subjects they are, and the christian, there is perpetual hostility; and can be no peace;”—for he fortifies the favourite sentiment by a pleonasm: he goes farther—he attempts to fortify it by the language, tortured surely, of christianity itself. “Quae autem conventio Christi ad Belial; aut quae pars fideli cum infideli.”q8
“Upon this ground,” continues he, “there is a diversity between a conquest of the kingdom of a christian king, and the conquest of that of an infidel. In the former case, the ancient laws of the kingdom remain, till they are altered by the conqueror: in the latter case, they are immediately abrogated; and, till new laws be established, the conqueror shall judge them according to natural equity.”r
The character of an opinion, like the character of a man, may be illustrated by tracing its history and pedigree. The opinion, that “the common law of England, as such, has no allowance or authority in the American plantations,” is the bastard child of this bastard mother, begotten on her body by the Commentariess on the laws of England. This very case of Calvin, and this very part of Calvin’s case, is cited—none better could be cited—as the authority for an opinion, which was calculated to cut off the noblest inheritance of the colonies: to use, for once, a language technically legal, the colonies were mulier, though they were puisne—they were legitimate, though they were young.
But to return to the subject of alienage—an alien, according to the notion commonly received as law, is one born in a strange country and in a foreign society, to which he is presumed to have a natural and a necessary allegiance.t
Errour, as well as truth, is sometimes connected by a regular chain. A man is deemed a dangerous enemy or a suspicious friend to that country in which he wishes to reside, because he is previously deemed an appurtenant or a slave to that country in which he chanced to be born. Such is one of the consequences of “natural and necessary allegiance.”
Between alien friends, who are temporary subjects, and subjects naturalized or natural born, a species of subjects intermediate is known to the law of England. They are distinguished by the appellation of denizens. The power of denization is a high and incommunicable portionu of the prerogative royal. A denizen is received into the nation, like a person who is dropt from the clouds. He may acquire rights, but he cannot inherit them, not even from his own parent: he may transmit rights to his children, who are born after his letters patent of denization; but not to those who were born before. A denizen may be moulded into a thousand fantastical shapes: he may be a denizen in tail, a denizen for life, a denizen for years, a denizen upon condition, a denizen in one court of justice, and an alien in another.v Of those modifications, however, a subject naturalized is unsusceptible; because, we are told, they would be inconsistent with the purity, the absoluteness, and the indelibility of natural allegiance.w For a sound rule, we receive an unsound reason.
Between a subject naturalized and a subject natural born, the distinction is merely nominal as to private rights: it applies only to the manner, in which those rights are devolved. On one they are devolved by his birth: on the other, by the consent of the nation, expressed in the parliament. With regard, however, to publick rights, the case is widely different. By statutes made even since the revolution, no subject naturalized can be a member of parliament; and no bill for naturalization can be received in either house of parliament, without such a disabling clause.x
Britain seems determined to merit and to perpetuate, in political as well as geographical accuracy, the description, by which it was marked many centuries ago—
—divisos toto orbe Britannos.9
What a very different spirit animates and pervades her American sons! Indeed it is proper that it should do so. The insulated policy of the British nation would as ill befit the expansive genius of our institutions, as the hills, the ponds, and the rivulets, which are scattered over their island, would adequately represent the mountains, and rivers, and lakes of the United States. “In the new world”—I speak now from one of the finest writers of Britainy —“in the new world nature seems to have carried on her operations with a bolder hand, and to have distinguished the features of the country by a peculiar magnificence. The mountains of America are much superiour in height to those in the other divisions of the globe. From those lofty mountains descend rivers proportionably large. Its lakes are no less conspicuous for grandeur, than its mountains and rivers.” We imitate, for we ought to imitate, the operations of nature; and the features of our policy, like those of our country, are distinguished by a peculiar magnificence.
In a former lecture,z we have seen how easily the essential rights of citizenship can be acquired in the United States, and in every state of the Union. Let us now see, how liberally the doors are thrown open for admission to the publick trusts and honours, as well as to the private rights and privileges, of our country.
At the end of two years from the time, at which a foreigner “of good character”—for numbers without virtue are not our object—a former mode of “better peopling his majesty’s plantations” is now fallen into disrepute—at the end of two years from the time,a at which a foreigner of good character sets his foot in this land of generosity as well as freedom, he is entitled to become, if he chooses,b a citizen of our national government. At the end of seven years, a term not longer than that which is frequently required for an apprenticeship to the plainest trade, the citizen may become legislator; for he is eligible as a representative in the congress of the United States.c After having, in that capacity, undergone the honourable but short probationship of two years, the doors even of our national senate are opened as far as to receive him.d
It would be tedious, and it is unnecessary, to multiply particulars, by going through all the sister states. In this, as in other respects, in which we have viewed them, we are still pleased with the
—facies, qualis decet esse sororum.10
The rights and the disabilities of aliens with regard to property, especially with regard to landed property, forms a subject of investigation both interesting and nice. But, according to my uniform method, I postpone it until I arrive at the second great division of my system. The examination of general principles should precede that of particular rules.
One opinion, however, I will now mention: it seems to be founded on the authority of Sir Henry Spelman and the Grand Custumier of Normandy.11 The opinion is, that the law, by which an alien is prohibited from holding lands, is an original branch of the feudal system; because, by that system, no one could purchase lands, unless he did fealty to the lords, of whom they were holden; and because an alien, who owed a previous faith to another prince, could not take an oath of fidelity in a second sovereign’s dominions.h
[a. ]Ante. p. 641.
[b. ]1. Rus. Anc. Eur. 362.
[c. ]Cons. U. S. art. 1. s. 2.
[d. ]Cons. Penn. art. 3. s. 1.
[e. ]Ante. p. 517–520.
[1. ]Edmund Burke (1729–1797) was an Anglo-Irish statesman and author. He is most famous for his book Reflections on the Revolution in France (1790).
[f. ]Refl. on Fr. Rev. 47.
[g. ]Ante. vol. 1. p. 572. et seq.
[h. ]Millar. 236.
[i. ]1. Gill. 49.
[2. ]Henry VI (1421–1471) was king of England from 1422 to 1461.
[j. ]Ante. p. 960.
[3. ]I am human; therefore nothing human is strange to me.
[4. ]Likely refers to Psammeticus II, an Egyptian pharaoh (c. 594–588 bc) famous for his invasion of Kush.
[5. ]Amasis II (570–526 bc) was a pharaoh of the twenty-sixth dynasty and last great pharaoh before the Persian conquest.
[k. ]3. Gog Or. Laws. 15. 16.
[l. ]1. Anac. 31. 32.
[m. ]1. Gill. 69.
[6. ]Lysias (c. 440–380 bc) was an Attic orator.
[7. ]Likely refers to the inhabitants of Euboea, an island in the Grecian archipelago.
[n. ]Gil. Lys. and Isoc. 319.
[o. ]1. Ld. Bac. 245.
[p. ]1. Bac. 76. Vent. 427.
[q. ]2. Cor. VI. 15.
[8. ]And what agreement, pray, is there of Christ toward Belial; or what part has the faithful person in common with the infidel?
[r. ]6. Rep. 17.
[s. ]1. Bl. Com. 107.
[t. ]1. Bac. 76.
[u. ]1. Bl. Com. 374.
[v. ]1. Ins. 129. a.
[w. ]1. Ins. 129. a.
[x. ]1. Bl. Com. 374.
[9. ]The Britons separated from the whole world.
[y. ]2. Rob. Amer. 3. 4.
[z. ]Ante. p. 839. et. seq.
[a. ]By the law now in force, a residence of five years is required. Laws U. S. 7. cong. 1. sess. c. 28. Ed.
[b. ]Laws U. S. 1. cong. 2. sess. c. 3.
[c. ]Cons. U. S. art. 1. s. 2.
[d. ]Cons. U. S. art. 1. s. 3.
[e. ]Cons. Penn. art. 1. s. 3.
[f. ]Cons. Penn. art. 1. s. 8.
[g. ]Art. 2. s. 4.
[10. ]Appearance, such as it befits sisters to have.
[11. ]The “Grand Custumier of Normandy” refers to A Collection of Laws of Normandyw as they stood before the disjoining of those Islands from the Dutch, viz. before the Time of King Henry III.
[h. ]1. Bac. 76. Tit. Alien.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2. Chapter: CHAPTER II.: Of Crimes Against the Right of Individuals to Their Property.
Accessed from oll.libertyfund.org/title/2074/166658 on 2008-08-21
Every crime includes an injury: every injury includes a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs.
I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right.
I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime.a I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrinsick atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.b It is not considered as affecting the community.
This principle, however, seems to have gained its full establishment only by the liberality of modern times. It is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council.c But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance by late decisions in England.
With the enjoyment and security of property, the security and the authenticity of its evidences is intimately connected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the common law.
Forgery, at the common law, may be described “the fraudulent making or alteration of a writing, to the prejudice of another man’s right.” For this crime, the punishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.d
Among the Egyptians, publick notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime.e In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment.f
The first act of parliament, which appears against it, was made in the reign of Henry the fifth. This act punishes it by satisfaction to the party injured, and by a fine to the king.g But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many complex securities and evidences of real property have justly rendered the crime of forgery, beside its intrinsick baseness—for it is a species of the crimen falsi1 —a consideration of great importance and extent. But is it equally true, that all this is a sufficient reason, why, in almost all cases possible to be conceived, every forgery, which tends to defraud, either in the name of a real or of a fictitious person, should be made, as in England it is now made, a capital crime?h “Pluet super populum laqueos.”2 There is a learned civilian, says my Lord Bacon, who expounds this curse of the prophet, of a multitude of penal laws; which are worse than showers of hail or tempest upon cattle; for they fall upon men.i
By a law of Pennsylvania, whoever shall forge, deface, corrupt, or embezzle deeds and other instruments of writing, shall forfeit double the value of the damage sustained, one half of which shall go to the party injured; and shall in the pillory, or otherwise, be disgraced as a false person.j
By a law of the United States it is enacted, that if any person shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any certificate, indent, or other publick security of the United States; or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale, any such false, forged, altered, or counterfeited certificate, indent, or other publick security, with intent to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted; every such person shall suffer death.k
To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is falsare or fabricare. And this is properly taken when the act is done in the name of another person.l “Falsely to make,” says he, are larger words than “to forge;” for one may make a false writing within this act (he speaks of the 5th. Eliz. c. 14. in which, as to the present point, the words used are substantially the same with the words of the law now under consideration) though it be not forged in the name of another, nor his seal nor hand counterfeited. As if a man make a true deed of feoffment under his hand and seal of the manor of Dale unto B.; and B. or some other rase out D and put in S, and then when the true deed was of the manor of Dale, now it is falsely altered and made the manor of Sale; this is a false writing within the purview of the statute.m
Another crime against the right of property is larceny. Larceny is described—the felonious and fraudulent taking and carrying away of the personal goods of another.n The Mirrour describes the crime as committed, “treacherousement.”o More indictments are to be found for larceny, among the records of England, than for all the other crimes known to the law. It is computed that nineteen criminals out of twenty are prosecuted for this crime.p
According as the opinions and sentiments of men concerning property have been more or less correct, their notions concerning larceny have been more or less pure. Indeed, in the nature of things, this must be the case. Theft, or the secret acquisition of property, was, at Sparta, thought neither a crime nor a shame. Why? Because at Sparta, Lycurgus had established a community of goods; and when one got hold of a larger share than his neighbours, especially among the young people, it was considered merely as an instance of juvenile address, and as indicating a superiour degree of future dexterity. The senatorial order at Rome, we are told, enjoyed the distinguished privilege of being exempted from every prosecution for larceny.q What is still more remarkable, a similar claim of privilege was, in the time of Charles the second, insisted on by the house of lords in England, when a bill was sent to them from the commons, to punish—wood stealers!r This anecdote we have on the authority of my Lord Clarendon, a peer, the chancellor, and the speaker of the house of lords.
Much has been said, in the English law books, concerning the distinction between grand and petit larceny. The distinction, however ancient, was never founded upon any rational principle; and the farther it flowed from its original source, the more unreasonable and cruel it became. Well might Sir Henry Spelman complain, that, while every thing else became daily dearer, the life of a man became more and more cheap.s But, what is more, this distinction, irrational and really oppressive, appears never to have been established with any degree of accuracy. The Author of Fleta says, if a person steals the value of twelve pence and more, he shall be punished capitally. Britton, in one place, says, if it is twelve pence or more. At this time, therefore—that is, in the reign of Edward the first—it was unsettled whether twelve pence was sufficient, or more than twelve pence was necessary, to superinduce the capital punishment.t A similar diversity and uncertainty of opinion appears in the reign of Edward the third.u
In the description of larceny, the taking is an essential part. For every felony includes a trespass; and if the person is guilty of no trespass in taking the goods, he can be guilty of no felony in carrying them away.v This is precisely the law language, conveying the doctrine, which I have illustrated generally and fully—that, without an injury, there can be no crime. A real trespass must be committed; but a real trespass will not be covered or excused by any artful stratagem to prevent the appearance of it. If one, who intends to steal the goods of another, obtains, with that intention, the process of the law to get them into his possession, in a manner apparently legal; this contrivance—an abuse of the law—will not excuse him from a charge of a felonious taking.w
To a larceny it is as necessary that the goods be carried away, as that they be taken. But the least removal of the goods is sufficient to satisfy this part of the description. To remove them from one place to another, even in the same room, is, in legal understanding, to carry them away. One, who intended to steal plate, took it out of a trunk, and laid it upon the floor, but was surprised before he could do more; he was adjudged guilty of larceny.x
The taking and carrying away, says Sir William Blackstone, and very truly, must also be felonious, that is, done animo furandi.3 This, by the way, is a clear and decided instance, that, in the meaning of the common law, felony is referred to the intention, and not to the event. As we saw in the former part of the description, that the crime could not exist without the injury; we see now, that the injury will not constitute the crime without the criminal intention. For, as the Author of the Commentaries next observes, this requisite indemnifies mere trespassers, and other petty offenders.y
The last part of the description of larceny at the common law is, that the goods must be personal. Land, or any thing that is adhering to the soil or to the freehold, cannot in one transaction be made the subject of larceny. But if any thing of this kind is, at one time, separated from the freehold, so as to become a chattel; and is, at another time, taken and carried away; larceny is now committed.z
In different nations, and in the same nation at different times, larceny or theft has received very different punishments. It would be tedious minutely to recite them. On no subject has there been more fluctuation in the criminal laws both of Greece and Rome. Seldom, however, was larceny punished capitally at Athens; never among the Romans. In the early part of the Anglo-Saxon period in England, theft of the worst kind did not expose the thief to any corporal punishment. But the compensation which he was obliged by law to make, rendered larceny a very unprofitable business when it was detected. Ina, the king of Wessex, declared stealing to be a capital crime; but allowed the offender or his friends to redeem his life, by paying the price at which it was valued by the law.a
The distinction between punishing theft as a crime, and exacting compensation for it as an injury, is strongly marked in a law of Howel Dha, the celebrated legislator of Wales: “If a thief is condemned to death, he shall not suffer in his goods; for it is unreasonable both to exact compensation, and to inflict punishment.”
In the ninth year of Henry the first, larceny above the value of twelve pence was, in England, made a capital crime, and continues so to this day; and, in a vast number of instances, it is, by modern statutes, deprived of the benefit of clergy. These statutes, says Mr. Eden, are so complicated in their limitations, and so intricate in their distinctions, that it would be painful, on many accounts, to attempt the detail of them. It is a melancholy truth, but it may, without exaggeration, be asserted, that, exclusive of those who are obliged by their profession to be conversant in the niceties of the law, there are not ten subjects in England, who have any clear conception of the several sanguinary restrictions, to which, on this point, they are made liable.b
By a law of the United States, larceny is punished with a fine not exceeding the fourfold value of the property stolen, and with publick whipping not exceeding thirty nine stripes.c In Pennsylvania, a person convicted of larceny to the value of twenty shillings and upwards, shall restore the goods or pay their value to the owner, shall also forfeit to the commonwealth the value of the goods, shall undergo a servitude for any term not exceeding three years, and shall be confined and kept to hard labour: a person convicted of larceny under twenty shillings, shall restore the goods or pay their value to the owner, shall forfeit the same value to the commonwealth, shall undergo a servitude not exceeding one year, and shall be confined and kept to hard labour.d
Forgery and larceny seem to be the only crimes against the right of private property known to the common law.
Robbery is generally classed among the crimes against the right of private property; but somewhat improperly, in my opinion. Robbery receives its deep dye from outrage committed on the person; but as property also enters into the description of this crime, I shall consider it here.
Robbery, at the common law, is a violent and felonious taking from the person of another, of money or goods to any value, putting him in fear.e From this description it appears, that, to constitute a robbery, the three following ingredients are indispensable: 1. a felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the person of another.
1. There must be a felonious intention to steal: larceny is a necessary, though by no means the most important ingredient, which enters into the composition of a robbery. The circumstances which are calculated and proper to evince this felonious intention, it is impossible to describe or recount: they must, in this as in other crimes, be left to the attentive consideration of those, by whom the person accused is tried. The value, however, of the property on which the larceny is committed, is, as to the robbery, totally immaterial. In this respect, a penny is equivalent to a pound.f
2. There must be some degree of violence and putting in fear. This indeed is the characteristick circumstance, which distinguishes robbery from other larcenies. If one assault another with such circumstances of terrour as put him in fear, and he, in consequence of this fear, deliver his money; this is a sufficient degree of violence; for he was put in fear by the assault; and gave his money to escape the danger.g To constitute a robbery, it is sufficient that the force used be such as might create an apprehension of danger, or oblige one to part with his property against his consent. Thus, if a man be knocked down without any previous warning, and stripped of his money while he lies senseless; this, though he cannot strictly be said to be put in fear, is undoubtedly a robbery.h
3. There must be a taking from the person of another. The thief must be in the possession of the thing stolen. If he go even so far as to cut the girdle, by which a purse hangs, so that it fall to the ground; yet if he do not take it up, he has not completed the robbery, because the purse was not in his possession.i The taking must be from the person; but this part of the description is answered, not only by taking the money out of one’s pocket, or forcing from him the horse on which he actually rides, but by taking from him, openly and before his face, any thing which is under his immediate and personal care and protection. If one, wishing to save his money, throw it into a bush, and the thief take it up; this is a taking from the person.j
We are told by Mr. Selden, that, before the conquest, robbery was punished differently, by the different nations who came from the continent of Europe. By the Saxons, it was punished with death: by the Angles, and by the Danes, it was punished only with fine.k After the conquest, these different laws were settled by the Normans in the more merciful way; and if the delinquent fled, his pledge satisfied the law for him. But in the times of Henry the first, the law was again reduced to the punishment of this crime by death: and so it has continued ever since.l
In the ancient laws of Wales, it is expressly declared, that robbery shall never be punished with death; “because (say these laws) it is a sufficient satisfaction for this crime, if the goods taken be restored, and a fine paid to the person from whom they were taken, according to his station, for the violence offered him, and another to the king for the breach of the peace.”m
Robbery, by a law of the United States, is punished capitally.n By a law of Pennsylvania, a person convicted of robbery forfeits to the commonwealth his lands and goods, and undergoes a servitude not exceeding ten years, in the gaol or house of correction.o
I proceed now to the consideration of two other crimes at the common law, which, though property, as in the case of robbery, enters into their description, yet receive their deep dye from outrages against personal security. This cannot be enjoyed without a legal guard around the residence of the person.
“A man’s house is his castle” was the expression, in times rude and boisterous, when the idea of security was found only on its association with the idea of strength; and in such times, no expression more emphatical could have been used. In happier times, when the blessings of peace and law are expected and due—in such times, a man’s house is entitled to an appellation more emphatick still—in such times, a man’s house is his sanctuary. “Quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?”p3 Into this sanctuary, the law herself, unless upon the most urgent emergencies, presumes not to look or enter. We have seen, on many occasions, with what a delicate—I may add, with what a respectful—reserve, she treats the near and dear domestick connexions. We may well suppose, that she will guard, with peculiar vigilance, the favoured spot in which a family reside. Even those who endeavour clandestinely to pry into its recesses—such areq eaves-droppers—receive her reprehension: and unless the peace or security of the publick require it, she will not suffer its doors to be broken, to execute even her own imperial mandates. When she thus solicitously protects the residence of a family from inferiour insults, we may rely, that she will zealously defend it from atrocious crimes. Such are arson and burglary.
Arson is a felony at common law, in maliciously and voluntarily burning the house of another.r This is not intended merely of the dwelling house itself, but extends to the outhouses; as the barn, the stable, the cow house, the dairy house, the mill house, the sheep house; which are parcel of the mansion house.s
This crime may be committed by wilfully burning one’s own house, if the house of another is also burnt; but if no mischief is done to that of another, it is not felony, though the fire was kindled with an intention to burn the house of that other.t But if the intention is to burn the house of another person, and by the burning of this the house of a third person is also burned; the burning of the house of this third person is felony; because the pernicious event shall be coupled with the felonious intention.u
Neither the mere intention to burn a house, nor even an actual attempt to burn it, by putting fire to it, will, if no part of it be burnt, amount to felony; but if any part of the house be burnt, it is arson, though the fire afterwards go out of itself, or be extinguished.v No misfortune, nor even culpable negligence or imprudence, will amount to arson: it must be voluntary and malicious. A person, by shooting with a gun, set fire to the roof of a house; this was determined not to be felony.w
Arson is a crime of deep malignity. The object of other felonies against the right to property, is merely to give it a new master; the object of arson is to destroy it—to lose it to society, as well as to its owner. The confusion and terrour which attend arson, and the continued apprehension which follows it, are mischiefs frequently more distressing than even the loss of the property.
The crime of arson was one of the very few punished capitally by the Saxon law. In the reign of Edward the first, those who perpetrated this crime were burnt, that they might suffer in the same manner, in which they had been criminal.x This crime is also one of the very few still punished capitally in Pennsylvania.yz
Burglary is a felony at the common law, in breaking and entering, by night, the mansion house of another, with intent to commit a felony.a
There have been some opinions, that this crime, on a construction of the phrase “by night,” may be committed at any time after the setting and before the rising of the sun; because the day was deemed to begin at the end, and to end at the beginning of those times; but the later and better opinion is, that if there be day light enough to discern the countenance of a man when the crime is committed, it cannot amount to a burglary.b
To a burglary it is necessary, that the house be both broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful entry on the possession of another. To open a window; to unlock the door; to break a hole in the wall; to enter an open door and unlatch a chamber door; to come down the chimney; to knock at the door and rush in when it is opened; to gain admittance by an abuse of legal process, or by the means of a conspiring servant; all these are actual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is sufficient to satisfy that entry, which the law deems necessary to constitute the crime of burglary.c
In a dwelling house only burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return; a house which one has hired, and into which he has brought part of his goods, though he has not lodged in it; a chamber in a college; a room occupied in a private house by a lodger; the out houses adjoining to the principal house; all these are mansion houses within the meaning of the law.d
A shop may be parcel of a mansion house; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the night time.e
To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable; but, as was shown on another occasion,f it is not necessary that the felony intended be committed; and it is immaterial whether that felony be by common or by statute law.g
By the law of Athens, burglary was a capital crime.h Among the Saxons also, burgessours4 were to be punished with death.i In Pennsylvania, burglary and robbery receive precisely the same punishment.j The punishment for robbery has been already mentioned.
[a. ]Ante. p. 1104.
[b. ]3. Burr. 1703. 1733.
[c. ]R. O. book A. vol. 1. p. 14.
[d. ]4. Bl. Com. 245.
[e. ]1. Gog. Or. L. 59.
[f. ]Bar. on St. 380.
[g. ]Id. ib.
[1. ]The crime of falsifying.
[h. ]4. Bl. Com. 247.
[2. ]A noose hangs over the heads of the people.
[i. ]4. Ld. Bac. 3.
[j. ]1. Laws Penn. 5.
[k. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 14.
[l. ]3. Ins. 169.
[m. ]3. Ins. 169.
[n. ]Id. 107. 4. Bl. Com. 230.
[o. ]C. 1. s. 10. 2. Reev. 42.
[p. ]Bar. on St. 443.
[q. ]Bar. on St. 491.
[r. ]Id. ibid.
[s. ]4. Bl. Com. 238.
[t. ]1. Reev. 485.
[u. ]2. Reev. 204.
[v. ]1. Haw. 89. Kel. 24.
[w. ]1. Haw. 90.
[x. ]Kel. 31. 1. Haw. 93.
[3. ]With intent to steal.
[y. ]4. Bl. Com. 232.
[z. ]1. Haw. 93.
[a. ]2. Henry 290.
[b. ]Eden. 289.
[c. ]Laws U. S. 1. cong. 2. sess. c. 9. s. 16.
[d. ]2. Laws. Penn. 803. s. 3. 4.
[e. ]3. Ins. 68. 1. Haw. 95.
[f. ]3. Ins. 69.
[g. ]1. Haw. 96, 97.
[h. ]Fost. 128. 4. Bl. Com. 242.
[i. ]3. Ins. 69.
[j. ]3. Ins. 69. 1. Haw. 96.
[k. ]Bac. on Gov. 63.
[l. ]Id. 88.
[m. ]2. Henry 292.
[n. ]Laws U. S. 1. con. 2. sess. c. 9. s. 8.
[o. ]2. Laws Penn. 802. s. 2.
[p. ]Cic. pro dom. 41.
[3. ]For what is more protected in any religion than the home of each and every one of the citizens?
[q. ]4. Bl. Com. 169.
[r. ]3. Ins. 66. 1. Haw. 105.
[s. ]3. Ins. 67.
[t. ]Cro. Car. 376.
[u. ]3. Ins. 67.
[v. ]1. Haw. 106.
[w. ]1. Hale. P. C. 569.
[x. ]1. Reev. 485.
[y. ]1. Laws. Penn. 137. 476.
[z. ]By an act of assembly passed 22d April, 1794, arson is punished by imprisonment at hard labour, for a period not less than five, nor more than twelve years. 3. Laws. Penn. 600. Ed.
[a. ]3. Ins. 63. 1. Haw. 101.
[b. ]1. Haw. 101.
[c. ]1. Haw. 103.
[d. ]3. Ins. 64. 1. Haw. 103. 104. 4. Bl. Com. 226.
[e. ]Wood. Ins. 388.
[f. ]Ante. p. 1103.
[g. ]4. Bl. Com. 227.
[h. ]1. Pot. Ant. c. 26.
[i. ]1. Reev. 485.
[j. ]2. Laws. Penn. 802. s. 2.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2. Chapter: CHAPTER III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
Accessed from oll.libertyfund.org/title/2074/166660 on 2008-08-21
Liberty, as we have seen on former occasions, is one of the natural rights of man; and one of the most important of those natural rights. This right, as well as others, may be violated; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law.
This we must ascribe to one of two causes. Either this right has been enjoyed inviolably: or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth: I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked: they have also been protected; they have also been encouraged; they have also been made; they have also been enjoined by the law. I speak this not only concerning the statute law; I am compelled to speak it also concerning the common law of England: I speak this not only concerning the law as it was received in the American States before their revolution; I am compelled to speak it also concerning the law as it is received in them still: I speak this not only concerning the law as it is received generally in the other sister states; I am compelled to speak it also concerning the law as it is received in Pennsylvania: nay, I am farther compelled to speak it also of the law as it is recently received in our national government.
Our publick liberty we have indeed secured;—esto perpetua—But, notwithstanding all our boasted improvements—and they are improvements of which we may well boast—the most formidable enemy to private liberty is, at this moment, the law of the land.
In some former parts of my lectures,a I have had occasion to remark, and I have remarked with pleasure, that solicitous degree of attention which the law gives to personal security. Its most distant avenues are watchfully guarded. To decide questions, by which it may be affected in the highest, or even in inferiour degrees, I have shown, in a sublime part of our system, to be the incommunicable prerogative of sovereignty or selected sovereignty itself. I have shown, that, by an operation inexpressibly fine, personal safety never sees the arm which holds the sword of justice, but at the moment when it is found necessary that its stroke should be made. Inferiour to personal safety only, if indeed inferiour even to that, is the consideration of personal liberty. And yet, while personal safety can be authoritatively affected only by the community, or a body selected from the community impartially and for the occasion, the law implicitly, causelessly, unconditionally, and continually prostrates personal liberty at the feet of every wretch who is unprincipled enough to trample upon it. I say, unprincipled; because a citizen, who has principle, will not wound it by using the authority of the law. In every state of the union—in every county of every state, there are shops opened, nay licensed, nay established by the law, at which its authority may be purchased, for a trifle, by the worst citizen, in order to infringe the personal liberty of the best.
From the disgrace of these enormities against the rights of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times.
With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law. Witness the many overgrown titles, by which the volumes of the law are still distended: witness, in particular, the customs de modo decimandi,1 and the writs de excommunicate capiendo2 and de hereticocomburendo.b3 These parts I only mention; because from these parts we are happily relieved: they are parts of the common law, which did not suit those who emigrated to America: they were, therefore, left behind them.
But, in some respects, private liberty is still the orphan neglected; in others, she is still the victim devoted by our municipal law. So inveterate, indeed, is the vice of the law in this particular, that it has infected its very language. The terms, which denote the diminution or the destruction of personal safety—homicide, wounding, battery, assault—are all prima facie4 understood in an unfavourable meaning; though they are sometimes excused, or justified, or even enjoined, as well as sometimes prohibited and punished by the law: but to imprisonment, the idea of legal authority seems, in legal understanding, to be prima facie annexed: and when it speaks of the unauthorized kind, it is obliged to distinguish it by adding the epithets false or unlawful.
But legislators should bear in their minds, and should practically observe—and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject—the following great and important political maxim:—Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. “Legum”—I repeat it—“servi sumus, ut liberi esse possimus.”5 In the course of my future investigations into this point, I shall be able to evince, in the clearest manner, that our municipal regulations concerning it are not less hostile to the true principles of utility, than they are to those of the superiour law of liberty.
Having made these preliminary observations on a subject, which so greatly needs, and so richly deserves them, I proceed to search the little that is said in some of our systems of criminal law—in others nothing is said—concerning it.
False imprisonment is punishable by indictment, like assaults and batteries; and the delinquent may be fined and imprisoned.c
Thus much concerning the crime of violating the personal liberty of man.
Reputation, except that of official characters, seems not, of late times, any more than personal liberty, to have attracted the distinguished regard of our publick law: and even when it deigns a little degree of regard to it, that regard flows from a wrong principle, and is referred to a wrong end. Libels are considered as objects of publick cognizance, not because the character, but because the tranquillity of the citizens is precious to the publick; and therefore, crimes of this nature are classed and prosecuted and punished as breaches of the peace, and as much resembling challenges to fight.d But it was not always so.
I said, on a former occasion,e that robbery itself does not flow from a fountain more rankly poisoned, than that which throws out the waters of calumny and defamation. In saying so, I was warranted by authority respectable and ancient. By the laws of the Saxons, the felon, who robbed, was punished less severely than the wretch who calumniated. By a law, made, towards the end of the seventh century, by Lothere, one of the kings of Kent,6 a calumniator was obliged to pay one shilling to him in whose house or lands he uttered the calumny. It was conceived, it seems, to diffuse a degree of contamination over things inanimate. He was obliged to pay six shillings to the person whom he calumniated, and twelve shillings to the king. When we recollect, that, long after this time, a shilling could purchase a fatted ox; we may judge concerning the light, in which defamation was viewed at this time. But Edgar the peaceable, who flourished about two centuries afterwards, made, against this crime, a law much more severe: it decreed, that a person convicted of gross and dangerous defamation should have his tongue cut out, unless he redeemed it by paying his full were, as it was called, or the price of his life. This law was confirmed by Canute7 the great.f
By the laws of Egypt, a defamer was condemned to the same punishment, which would have been inflicted on the defamed, if the defamation had been true.g Solon, in one of his laws, ordained, that a delinquent in slander should make reparation in money to the party injured; and should also pay a fine into the publick treasury.h
A libel may be described—a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.i It is clearly a crime at the common law.j
It has been often observed in the course of these lectures, that one extreme naturally produces its opposite. An unwarrantable attempt made in the star chamber, during the reign of James the first, to wrest the law of libels to the purposes of ministers, and an effort continued ever since to carry that attempt into execution, and even to go beyond some of its worst principles, have, in England, lost to the community the benefits of that law, wise and salutary when administered properly, and by the proper persons. The decision in that case has ever since been considered, in England, as the foundation of the law on this subject. It will be proper, therefore, to examine the parts of that decision with some degree of minuteness.
The libel, prosecuted and condemned, was a satyrical ballad on a deceased archbishop of Canterbury and his living successour.k
The first resolution is, that a libel against a magistrate, or other publick person, is a greater offence than one against a private man. This, in the unqualified manner here expressed, cannot be rationally admitted. Other circumstances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct; because an officer is a citizen and more. But a libel of one kind against a private citizen, may certainly be more atrocious, and of example more atrociously evil, than a libel of another kind against a publick officer.
Another and a more important resolution in that case is—that it is immaterial whether the libel be false or true. This resolution is clearly extra-judicial, because it appears, from the state of the case, that the author of the libel was proceeded against on his own confession. The rule, however, has been followed by more modern determinations; and reasons have been offered to support it on the principles of law. The provocation and not the falsity, says Sir William Blackstone, is the thing to be punished criminally. In a civil action, he admits, a libel must appear to be false as well as scandalous; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the publick peace; and, therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the publick peace, is the sole consideration of the law.l
Upon this passage, I observe, in the first place, that a libel is a violation of the right of character, and not of the right of personal safety. It is no wonder if the reasonings on this crime are inaccurate, when its very principle is mistaken.
I observe, in the second place, that these inaccurate reasonings are attempted to be established by a gross inconsistency. When they refer to the effects of the libel, they suppose the tendency to produce disturbances of the peace: when they refer to the causes of the libel, they say to him who is actuated by them—you ought, in a settled government, to complain for every injury in the ordinary course of law, and by no means to revenge yourself.m Why is not this advice given consistently, to the person provoked by the libel? If he has received an injury—if on that injury a crime is superinduced; the law will repair the former, and punish the latter: if no injury has been sustained, no foundation has been laid for a crime.
I observe, in the third place, that Sir William Blackstone here seems not to have been sufficiently attentive to a principle, which he properly subscribes in another part of his Commentaries:n the crime includes an injury: every publick offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community.
The only points, it is said, to be considered in the prosecution for a libel, are, first, the making or publishing of the book or writing: secondly, whether the matter be criminal.o
On the last of these two points, a celebrated controversy has subsisted between judges and juries; the former claiming its decision as a question of law; the latter claiming it as a question of fact, or, at least, necessarily involved in the decision of a question of fact. After what I have said, in a former lecture,p concerning the general duties and powers of juries, you will be at no loss to know my sentiments on this controverted subject. I only remark, at present, that if a libel be, as I think it is, a crime against the right of reputation; the trial on a libel must be the trial of a character; or some part of a character. Of all questions, almost, which can be proposed, I think this the most remote from a question of law.
The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common law: “in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.”q
The punishment of a libel is a fine, or a fine and corporal punishment.r
[a. ]Ante. vol. 2. p. 384. et. seq.
[1. ]Of the manner of tithing. A prescription de non decimando is a claim to be entirely discharged of tithes and pay no compensation in lieu of them.
[2. ]A writ issued out of a common-law court for the arrest of a person who after having been excommunicated refused to obey the sentence of the ecclesiastical court.
[b. ]4. Bl. Com. 46.
[3. ]For burning a heretic. This writ issued by special direction of the king caused one convicted of heresy to be burned to death.
[4. ]At first view; self-evident.
[5. ]We are slaves to the law in order that we may be able to be free.
[c. ]4. Bl. Com. 218. 2. Haw. 90.
[d. ]4. Bl. Com. 150.
[e. ]Vol. 2. p. 1066.
[6. ]Lothere (or Hlothere) was one of the kings of Kent and ruled the Jute kingdom of Kent (now a county in the Southeast of England) from 673 to 685.
[7. ]Canute (or Cnut) (994/995–1035) was king of England, Denmark, and Norway.
[f. ]2. Henry. 293.
[g. ]1. Gog. Or. L. 58.
[h. ]1. Pot. Ant. 179.
[i. ]1. Haw. 193.
[j. ]3. Ins. 174.
[k. ]5. Rep. 125 a.
[l. ]4. Bl. Com. 150.
[m. ]5. Rep. 125 b.
[n. ]4. Bl. Com. 5.
[o. ]Id. 151.
[p. ]Vol. 2. p. 975. et seq.
[q. ]Art. 9. s. 7.
[r. ]1. Haw. 196.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 2. Chapter: CHAPTER VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
Accessed from oll.libertyfund.org/title/2074/166666 on 2008-08-21
Those crimes and offences of which I have already treated, attack some one of the natural rights of man or of society: there are other crimes and offences, which attack several of those natural rights. Of these, nuisances are the most extensive and diversified.
A nuisance denotes any thing, which produces mischief, injury, or inconvenience. It is divided into two kinds—common and private.a The latter will be treated under the second division of my system: it is a damage to property. Common nuisances are a collection of personal injuries, which annoy the citizens generally and indiscriminately—so generally and indiscriminately, that it would be difficult to assign to each citizen his just proportion of redress; and yet, on the whole, so “noisome,” that publick peace, and order, and tranquillity, and safety require them to be punished or abated.
On this subject, and, I believe, on this subject alone, the common law makes no distinction between a person and a thing. The exquisite propriety, with which the distinction is lost in this subject, proves strongly the importance of preserving it in every other. The exception establishes the rule.
How degraded are persons when they deserve to be classed with things! We have seen, on a former occasion,b that—1. The duellists and the promoters of duels are ranked with the offals of the shambles. The station is, indeed, a most humiliating one. Let no station, however, yield to absolute despair. From the very lowest depression, as well as from the very highest exaltation, there is a return in a contrary course. In pure compassion for the degraded hero, let us give him at least one grade of promotion. Perhaps, by vigorous exertion, he may become qualified for his advanced dignity. The quarreller or promoter of quarrels of one sex, may behave so as to reflect no great disgrace on the common scold of the other. She, too, is a common nuisance.
2. A common scold, says the law, is a publick nuisance to her neighbourhood: as such she may be indicted, and, if convicted, shall be placed in a certain engine of correction, called the trebucket, castigatory, or cucking stool; which, in the Saxon language, signifies the scolding stool; though now it is frequently corrupted into ducking stool; because the residue of the sentence against her is, that when she is thus placed, she shall be plunged in the waterc —for the purpose of prevention, it is presumed, as well as of punishment.
Our modern man of gallantry would not surely decline the honour of her company. I therefore propose humbly, that, in future, the cucking stools shall be made to hold double.
3. Eaves droppers too, another set of honourable associates—such as listen under walls, or windows, or eaves of a house, in order to hear the discourse of the family, and from that discourse to frame tales, mischievous and slanderous—these are common nuisances: they may be indicted as such; and as such may be punished by fine and finding sureties for their good behaviour.d
It is whispered to me, that the expression “eaves droppers” must refer to a very early and a very simple state of society, when people lived in cabins or huts: because, when people live in three story houses, it would be rather awkward to listen at their eaves in order to learn the secrets of families. It is therefore suggested, that, as the common law is remarkable for its adroitness in accommodating itself to the successive manners of succeeding ages, a small alteration should be made in the description of this nuisance, in order to suit it to the present times; and that the tea table should be substituted in the place of the eaves of the house. I declare I have not the remotest objection to the proposal; provided the wine tables, whenever they merit it, be of the party.
4. To keep hogs in any city or market town is a common nuisance.e
5. Disorderly houses are publick nuisances; and, upon indictment, may be suppressed and fined.f
6. Every thing offensive and injurious to the health of a neighbourhood is a common nuisance; is liable to a publick prosecution; and may be punished by fine according to the quantity of the misdemeanor.g
7. Annoyances in highways, bridges, and publick rivers are likewise common nuisances.h Other kinds might be enumerated.
Indecency, publick and grossly scandalous, may well be considered as a species of common nuisance: it is certainly an offence, which may be indicted and punished at the common law.i
Profaneness and blasphemy are offences, punishable by fine and by imprisonment. Christianity is a part of the common law.j
[a. ]3. Bl. Com. 216. 4. Bl. Com. 166.
[b. ]Ante. p. 1139.
[c. ]4. Bl. Com. 169.
[d. ]Id. ibid.
[e. ]4. Bl. Com. 167.
[f. ]Id. ibid.
[g. ]Id. ibid.
[h. ]Id. ibid.
[i. ]1. Haw. 7. 1. Sid. 168. Wood. Ins. 412.
[j. ]2. Str. 834. 4. Bl. Com. 59.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: James Wilson’s State House Yard Speech October 6, 1787. *
Accessed from oll.libertyfund.org/title/2072/156430 on 2008-08-21
Wilson’s “State House Yard Speech” was one of the first major public defenses of the proposed constitution. By the end of 1787 it had been reprinted in thirty-four newspapers in twelve states and circulated throughout the colonies as a pamphlet. Bernard Bailyn notes that “in the ‘transient circumstances’ of the time it was not so much the Federalist papers that captured most people’s imaginations as James Wilson’s speech of October 6, 1787, the most famous, to some the most notorious, federalist statement of the time” (Ideological Origins , 328).
Mr. Wilson then rose, and delivered a long and eloquent speech upon the principles of the Foederal Constitution proposed by the late convention. The outlines of this speech we shall endeavour to lay before the public, as tending to reflect great light upon the interesting subject now in general discussion.
Mr. Chairman and Fellow Citizens, Having received the honor of an appointment to represent you in the late convention, it is perhaps, my duty to comply with the request of many gentlemen whose characters and judgments I sincerely respect, and who have urged, that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the constitution, that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition; but the insidious attempts which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defence; and the impressions of four months constant attention to the subject, have not been so easily effaced as to leave me without an answer to the objections which have been raised.
It will be proper however, before I enter into the refutation of the charges that are alledged, to mark the leading descrimination between the state constitutions, and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating foederal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would have been superfluous and absurd to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what controul can proceed from the foederal government to shackle or destroy that sacred palladium of national freedom? If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect likewise to the particular district of ten miles, which is to be made the seat of foederal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the president, senate, and house of representatives of the United States. But this could not be an object with the convention, for it must naturally depend upon a future compact, to which the citizens immediately interested will, and ought to be parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.
Another objection that has been fabricated against the new constitution, is expressed in this disingenuous form—“the trial by jury is abolished in civil cases.” I must be excused, my fellow citizens, if upon this point, I take advantage of my professional experience to detect the futility of the assertion. Let it be remembered then, that the business of the Foederal Convention was not local, but general; not limited to the views and establishments of a single state, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties. When therefore, this subject was in discussion, we were involved in diffculties which pressed on all sides, and no precedent could be discovered to direct our course. The cases open to a trial by jury differed in the different states, it was therefore impracticable on that ground to have made a general rule. The want of uniformity would have rendered any reference to the practice of the states idle and useless; and it could not, with any propriety, be said that “the trial by jury shall be as heretofore,” since there has never existed any foederal system of jurisprudence to which the declaration could relate. Besides, it is not in all cases that the trial by jury is adopted in civil questions, for causes depending in courts of admiralty, such as relate to maritime captures, and such as are agitated in courts of equity, do not require the intervention of that tribunal. How then, was the line of discrimination to be drawn? The convention found the task too diffcult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the supreme court, are to be regulated by the congress, which is a faithful representation of the people; and the oppression of government is effectually barred, by declaring that in all criminal cases the trial by jury shall be preserved.
This constitution, it has been further urged, is of a pernicious tendency, because it tolerates a standing army in the time of peace.—This has always been a topic of popular declamation; and yet, I do not know a nation in the world, which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility. Nor is it a novelty with us; for under the present articles of confederation, congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio. But what would be our national situation were it otherwise? Every principle of policy must be subverted, and the government must declare war, before they are prepared to carry it on. Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defence. The consequence is too obvious to require any further delineation, and no man, who regards the dignity and safety of his country, can deny the necessity of a military force, under the controul and with the restrictions which the new constitution provides.
Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the foederal senate. This body branches into two characters, the one legislative, and the other executive. In its legislative character it can effect no purpose, without the cooperation of the house of representatives, and in its executive character, it can accomplish no object, without the concurrence of the president. Thus fettered, I do not know any act which the senate can of itself perform, and such dependance necessarily precludes every idea of influence and superiority. But I will confess that in the organization of this body, a compromise between contending interests is descernible; and when we reflect how various are the laws, commerce, habits, population, and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause, than to excite jealousy and reproach. For my part, my admiration can only be equalled by my astonishment, in beholding so perfect a system, formed from such heterogeneous materials.
The next accusation I shall consider, is that which represents the foederal constitution as not only calculated, but designedly framed, to reduce the state governments to mere corporations, and eventually to annihilate them. Those who have employed the term corporation upon this occasion, are not perhaps aware of its extent. In common parlance, indeed, it is generally applied to petty associations for the ease and conveniency of a few individuals; but in its enlarged sense, it will comprehend the government of Pennsylvania, the existing union of the states, and even this projected system is nothing more than a formal act of incorporation. But upon what pretence can it be alledged that it was designed to annihilate the state governments? For, I will undertake to prove that upon their existence, depends the existence of the foederal plan. For this purpose, permit me to call your attention to the manner in which the president, senate, and house of representatives, are proposed to be appointed. The president is to be chosen by electors, nominated in such manner as the legislature of each state may direct; so that if there is no legislature, there can be no electors, and consequently the office of president cannot be supplied. The senate is to be composed of two senators from each state, chosen by the legislature; and therefore if there is no legislature, there can be no senate. The house of representatives, is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature,—unless therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the foederal constitution must likewise be extinct. From this view, then it is evidently absurd to suppose, that the annihilation of the separate governments will result from their union; or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties. Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the house of representatives—whereas, by the present confederation, it is the legislature alone that appoints the delegates to Congress.
The power of direct taxation has likewise been treated as an improper delegation to the foederal government; but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the union, and to discharge the debts contracted upon the collective faith of the states for their common benefit, it must be acknowledged, that those upon whom such important obligations are imposed, ought in justice and in policy to possess every means requisite for a faithful performance of their trust. But why should we be alarmed with visionary evils? I will venture to predict, that the great revenue of the United States must, and always will be raised by impost, for, being at once less obnoxious, and more productive, the interest of the government will be best promoted by the accommodation of the people. Still however, the objects of direct taxation should be within reach in all cases of emergency; and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource, than in the form of an impost, which, by universal assent, is left to the authority of the foederal government. In either case, the force of civil institutions will be adequate to the purpose; and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination, or a factious spirit. But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the union, will afford another answer to the objections upon this ground. The State of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage; for, as it was the imbecility of the present confederation, which gave rise to the funding law, that law must naturally expire, when a competent and energetic foederal system shall be substituted—the state will then be discharged from an extraordinary burthen, and the national creditor will find it to be his interest to return to his original security.
After all, my fellow citizens, it is neither extraordinary or unexpected, that the constitution offered to your consideration, should meet with opposition. It is the nature of man to pursue his own interest, in preference to the public good; and I do not mean to make any personal reflection, when I add, that it is the interest of a very numerous, powerful, and respectable body to counteract and destroy the excellent work produced by the late convention. All the offices of government, and all the appointments for the administration of justice and the collection of the public revenue, which are transferred from the individual to the aggregate sovereignty of the states, will necessarily turn the stream of influence and emolument into a new channel. Every person therefore, who either enjoys, or expects to enjoy, a place of profit under the present establishment, will object to the proposed innovation; not, in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence. I will confess indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it, which if my wish had prevailed, would certainly have been altered. But, when I reflect how widely men differ in their opinions, and that every man (and the observation applies likewise to every state) has an equal pretension to assert his own, I am satisfied that any thing nearer to perfection could not have been accomplished. If there are errors, it should be remembered, that the seeds of reformation are sown in the work itself, and the concurrence of two thirds of the congress may at any time introduce alterations and amendments. Regarding it then, in every point of view, with a candid and disinterested mind, I am bold to assert, that it is the best form of government which has ever been offered to the world.
Mr. Wilson’s speech was frequently interrupted with loud and unanimous testimonies of approbation, and the applause which was reiterated at the conclusion, evinced the general sense of its excellence, and the conviction which it had impressed upon every mind.
[* ]Reprinted with permission of the Wisconsin Historical Society.
James Wilson, Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, with an Introduction by Kermit L. Hall, and a Bibliographical Essay by Mark David Hall, collected by Maynard Garrison (Indianapolis: Liberty Fund, 2007). Vol. 1. Chapter: CHAPTER XI.: Comparison of the Constitution of the United States, with that of Great Britain.
Accessed from oll.libertyfund.org/title/2072/156475 on 2008-08-21
The British constitution has been celebrated in the most sublime and in the most elaborate strains by poets, by orators, by lawyers, and by statesmen. “As for us Britons,” says the elegant Shaftesbury, comparing them, in the spirit of a fond and a just preference, with many other nations, “as for us Britons, thank heaven, we have a better sense of government, delivered to us from our ancestors. We have a notion of a publick, and a constitution; how a legislative and how an executive is modelled. We understand weight and measure in this kind; and can reason justly on the balance of power and property. The maxims we draw from hence, are as evident as those in mathematicks. Our increasing knowledge shows us every day, more and more, what common sense is in politicks.”a
My Lord Bolingbroke,b in his masterly and animated style, represents this constitution as “a noble fabrick, the pride of Britain, the envy of her neighbours, raised by the labour of so many centuries, repaired at the expense of so many millions, and cemented by such a profusion of blood—a fabrick, which has resisted the efforts of so many races of giants.”
You will be surprised on being told, that, if the nature and characteristick qualities, which I have described, are the true nature and characteristick qualities of a constitution; no such thing as a constitution, properly so called, is known in Great Britain. What is known, in that kingdom, under that name, instead of being the controller and the guide, is the creature and the dependent of the legislative power. The supreme power of the people is a doctrine unknown and unacknowledged in the British system of government. The omnipotent authority of parliament is the dernier resort, to which recourse is had in times and in doctrines of uncommon difficulty and importance. The natural, the inherent, and the predominating rights of the citizens are considered as so dangerous and so desperate a resource, as to be inconsistent with the arrangements of any government, which does or can exist.
The order of things in Britain is exactly the reverse of the order of things in the United States. Here, the people are masters of the government; there, the government is master of the people.
That, on this very interesting subject of contrast, you may be enabled to judge for yourselves, I shall lay before you some passages from British writers of high reputation. From those passages, you can draw your own inferences.
“Most of those,” says Mr. Paley, “who treat of the British constitution, consider it as a scheme of government formally planned and contrived by our ancestors, in some certain era of our national history; and as set up in pursuance of such regular plan and design. Something of this sort is secretly supposed, or referred to in the expressions of those, who speak of the principles of the constitution, of bringing back the constitution to its first principles, of restoring it to its original purity, or primitive model. Now this appears to me an erroneous conception of the subject. No such plan was ever formed; consequently no such first principles, original model, or standard exist.
“The constitution is one principal division, head, section, or title of the code of publick laws, distinguished from the rest only by the particular nature, or superiour importance of the subject, of which it treats. Therefore the terms constitutional and unconstitutional, mean legal and illegal. The distinction and the ideas, which these terms denote, are founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries. The system of English jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immemorial usages; consequently, these are the principles of which the constitution itself consists; the sources, from which all our knowledge of its nature and limitations is to be deduced, and the authorities, to which all appeal ought to be made, and by which every constitutional doubt or question can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is constitutional with what is expedient; pronouncing forthwith a measure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous; whilst others again ascribe a kind of transcendent authority, or mysterious sanctity to the constitution, as if it was founded in some higher original, than that, which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its intrinsick utility.
“An act of parliament, in England, can never be unconstitutional, in the strict and proper acceptation of the term: in a lower sense it may; viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the eighth conferred upon the king’s proclamation the authority of law, was unconstitutional only in this latter sense.”c
Sir William Blackstone uses the term, constitution, as commensurate with the law of England. “Of a constitution,” says he, “so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is justly and severely its due. It hath been the endeavour of these Commentaries, however the execution may have succeeded, to examine its solid foundations, to mark out its extensive plan, to explain the use and distribution of its parts, and from the harmonious concurrence of those several parts to demonstrate the elegant proportion of the whole.”d
Mr. Paley uses the word in a more confined and, perhaps, a more proper sense, when applied to Great Britain; as meaning that part of the law, which relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of the courts of justice.e In this sense I shall use the term, when I speak of the British constitution. And in this sense, the superiority of our constitution to that of Great Britain will eminently appear from the comparison, which we now institute, between their principles, their construction, their proportion, and their properties.
The extension of the theory and practice of representation through all the different departments of the state is another very important acquisition made, by the Americans, in the science of jurisprudence and government. To the ancients, this theory and practice seem to have been altogether unknown. To this moment, the representation of the people is not the sole principle of any government in Europe. Great Britain boasts, and she may boast with justice, that, by the admission of representation, she has introduced a valuable improvement into the science of jurisprudence. The improvement is certainly valuable, so far as it extends; but it is by no means sufficiently extensive.
Is the principle of representation introduced into the executive department of the constitution of Great Britain? This has never been attempted. Before the revolution of one thousand six hundred and eighty eight, some of the kings claimed to hold their thrones by divine, others by hereditary right; and even at the important era of that revolution, nothing farther was endeavoured or obtained, than the recognition of certain parts of an original contract, supposed, at some former period, to have been made between the king and the people. A contract seems to exclude, rather than to imply delegated power. The judges of Great Britain are appointed by the crown. The judicial department, therefore, does not depend upon a representation of the people, even in its remotest degree. Is representation a principle operating in the legislative department of Great Britain? It is; but it is not a predominating principle; though it may serve as a very salutary check. The legislature consists of three branches, the king, the lords, and the commons. Of these, only the latter are supposed, by the constitution, to represent the authority of the people. We now see clearly, to what a narrow corner of the British government the principle of representation is confined. In no other government in Europe does it extend farther: in none, I believe, so far. The American States enjoy the glory and the happiness of diffusing this vital principle throughout all the different divisions and departments of the government. Representation is the chain of communication between the people and those, to whom they have committed the important charge of exercising the delegated powers necessary for the administration of publick affairs. This chain may consist of one link, or of more links than one; but it should always be sufficiently strong and discernible.
As, in England, the house of commons alone represents, or is supposed to represent, the people at large; so, in that house alone are we to look for the constitutional and authoritative expression of the people’s will. But even in that house, this will is but very feebly and very imperfectly expressed, for the representation in that house is very unequal and inadequate; and it is protracted through a period of time much too long.
It is very unequal and inadequate. In England, we may, from information which seems to be unexceptionable, compute six hundred and thirty nine thousand taxable inhabitants. This number would assign one representative to twelve hundred constituents. But the fact is, that a number not exceeding six thousand are sufficient to return more than one half of the members of the house of commons. This is in the proportion of twenty three constituents for one representative. The consequence is, that a majority of the house of commons may be returned by less than a fiftieth part of the constituents, that ought to be requisite for returning that majority. What is the situation of the other forty nine parts? Need I repeat, this representation is very unequal and inadequate? As to the number of electors, it certainly is.
It may, perhaps, be expected, that this deficiency in their numbers is, in some measure at least, compensated by the worth, the respectability, the independence, and the enlarged influence of the individuals, who are empowered to vote. To this expectation, the fact is directly reverse. That small part are the most dependent and the least respectable part of the commons of England. They are emphatically styled the rotten part of the constitution. In dignity and respectability, therefore, as well as in numbers, the representation of the commons of England is extremely inadequate and unequal.
The softness of a whisper may sometimes communicate sound with a more distinct impression than the report of a cannon. Sir William Blackstone admits that “if any alteration might be wished or suggested in the present frame of parliament, it should be in favour of a more complete representation of the people.”f
The inequality of the representation of the people of England is evinced, in the most striking manner, by another comparative view, in which it may be placed. Ninety two members represent the landed interest; about one hundred members represent the great cities and towns; above three hundred members represent small and inconsiderable boroughs.
But further; the representation of the commons is not renewed by them at periods sufficiently near one another. Parliaments were at first annual; they were afterwards triennial; now they are septennial. This last period is surely too long. The members will be apt to forget the source from which they have received their powers. Every government, in order to preserve its freedom, has frequent need of some new provisions in favour of that freedom. Such new provisions are most likely to spring from those, who have been recently animated by the inspiration of the people.
A representation, inadequate, unequal, and continued too long, is inconsistent with the principles of free government: for by such a representation, it is probable that the sense of the people will be misapprehended, or misrepresented, or despised. This probability has, in England, been converted into fact and experience. During many years past, the politicks of the house of commons have been moved by the direction of the court and ministers, and not by the sense of the nation. Numerous and striking instances of this might be produced. But I can only point to those paths of investigation; I cannot pursue them.
How immensely different is the state of representation in the house of commons, from that which is established in the United States. With us, every freeman who possesses an attachment to the community, and a common interest with his fellow citizens, and is in a situation not necessarily dependent, is entitled to a vote for members. With us, no preference is given to any party, any interest, any situation, any profession, or any description over another. With us, those votes, equally, freely, and universally diffused, will have their frequent and powerful operation and influence. With us, therefore, it may be expected, that the voice of the representatives will be the faithful echo of the voice of the people.
Having seen that the house of representatives of the United States will not suffer by being compared, in its proportion and in its duration, with the house of commons of Great Britain; let us proceed to a comparison of the senate with the house of lords.
That house is divided into two orders; the lords spiritual, and the lords temporal. The lords spiritual are composed of the archbishops and bishops. All these hold, or are supposed to hold, certain ancient baronies under the crown; and, in right of succession to those baronies, which were inalienable from their respective dignities, they obtained their seats in the house of lords. With the other lords they intermix in their votes; and the majority of such intermixture binds both estates. The lords temporal consist of all the peers of the realm, by whatever title of nobility they are distinguished. Of these, some sit by descent, as all ancient peers; others, by creation, as all new made ones; others, since the union with Scotland, by election of the nobility of that country. The number of peers is indefinite; and may be increased at the pleasure of the crown.
The writers on the British constitution view the distinctions of rank and honours as necessary in every well governed state, in order to reward such as are eminent for their services to the publick; exciting thus a laudable ardour in others; and diffusing, by such ardour, life and vigour through the whole community. A body of nobility, they say, creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising, like a pyramid, from a broad foundation, and diminishing as it rises, till, at last, it terminates in a single point. It is this ascending and contracting proportion, they conclude, which adds stability to any government.
That eminent services ought to be rewarded, that devotion to the publick ought to receive the warmest encouragement, will not be denied here. But does this encouragement—do these rewards grow only in an aristocratick soil? Has republicanism no rewards or honours for her meritorious sons? She is accused, it is true, of ingratitude. But the facts, which have given rise to the accusation, have not, we hope, been owing peculiarly to her disposition or principles, but have sprung from a spirit of envy and malevolence, predominating, alas! too much in all communities, and discovering too often more activity and zeal in doing mischief, than the opposite qualities display in doing good. Besides; instances have not been unfrequent, in which publick gratitude has been expressed by commonwealths, most generously and most effectually, both in words and actions. It is true, that the publick testimonials of gratitude and esteem have no hereditary descent among republicans; because it is true, that no regular course of descent is established in the qualities and services which merit them.
The nobility, we are told, are necessary in the British constitution, to form a barrier against the mutual encroachments of the king and of the people. In the government of the United States, separate orders of men do not exist; no encroachments of this kind can take place; and there is no occasion to provide barriers against them. The pyramid of government may certainly be raised with all the graces of fair proportion, and also with the more substantial qualities of firmness and strength, although the materials, of which it is constructed, be not an assemblage of different and dissimilar kinds. These are more likely to recal to our minds the composition and the fate of a heterogeneous and disjointed piece of workmanship, so well described by the prophet Daniel. But to drop the idea of approving and disapproving by metaphor; we find that, in Britain, there being two orders, the king and the people, it was necessary that there should be a third, to hold the balance between them. But different orders, we apprehend, may well be dispensed with in a good and perfect government.
Wisdom, it is said, is found in an aristocracy. Why? Because its members are formed by education, and matured by experience, for the discharge of their duty. Education and experience, it will be readily allowed, are excellent for forming and finishing the habits and characters of statesmen. But on whom will the best education be probably bestowed? On whom will it be likely to produce the strongest and most beneficial influence? On him, whose parents know, and who himself will soon know, that, whether he receive it or not, or, receiving it, whether he improve it or not, still he must succeed to all the preeminences of aristocratick power?—or on him, whose parents foresee, and who himself will be soon sensible, that his prospects of success in publick life must depend on the qualities, acquired as well as natural, which he can bring into publick life along with him? Whom will experience best teach? Him, who sees, that, as estimable acquirements have not been necessary for introducing him to the dignities of the state, they are as little necessary for continuing him in the enjoyment of them? or him, who is aware, that, as the good opinion of his fellow citizens concerning his talents and virtues procured him admission to the honours of his country, his continuance in the possession of those honours must depend on his justifying that good opinion, on his improving it into confidence, and on his showing, by a progressive display of services and accomplishments, that his conduct becomes daily more and more worthy of publick sanction and esteem? He is, it is true, in some measure, dependent: but his dependence is not of an irrational or illiberal kind. It is of a kind, which, instead of depressing, will rouse and elevate the temper and character.
We thus seize the strong outworks of aristocracy, and successfully turn on herself her most formidable batteries.
In drawing a contrast between the executive magistrates of the United States and Great Britain, I wave every degree of comparison with regard to some of the characters applied to the latter, in the description given of him by the British law and the British lawyers. They ascribe to him certain qualities as inherent in his royal capacity, distinct from and superiour to those of any other individual in the nation: they assign to him certain properties of a great and transcendent nature: by these means, it is thought, the people will consider him in the light of a superiour being; and will pay him that awful respect, which may enable him, with greater ease, to carry on the business of government. The law clothes him with the attributes of sovereignty, of ubiquity, and of absolute perfection: he can do no wrong: he can think no wrong: in him no folly—in him no weakness can be found: royal wisdom is ascribed to the infant of a span long, as much as to the experienced sire, who has seen three generations: the man dies; but the king satisfies the wish of eastern adulation: he lives for ever!
Prepossessions long entertained, habits long formed, and practices long established may, possibly, have interwoven those ideas into the system of the British constitution in such a manner, that it would be difficult now to disentangle them, without tearing or injuring some more useful parts of the fabrick. But in forming a new system, it is certainly neither necessary nor proper to introduce into it qualities and pretensions so disproportioned to the sober consideration and management of human affairs. Power may be conferred without mystery; and may be exercised, for every wise and benevolent purpose, without challenging attributes, to which our frail and imperfect state of humanity stands in daily and marked contradiction.
On what foundation is the monarchical part of the British constitution supported? Are the rights of the monarch supposed, by it, to flow from the authority of those, over whom he is placed? Is the majesty of the people recognised as the august parent of the prerogative of the prince? No. Such principles have never received the sanction of the British constitution. Concerning the origin of the powers and rights of their monarchs, very different opinions have, at different times, been entertained and propagated. The dark foundations of conquest have, in some reigns, been uncovered and exposed to view. Divine right has, in others, been impiously summoned to sanctify claims and pretensions, too exorbitant to have derived their source from human authority. At some periods, the title to the crown has been supposed to be founded on hereditary right, a right derived, by succession, from a long list of ancestors. But, in tracing this succession upwards, we necessarily come, at last, in fact, or in idea, to some one, who was the first possessor. How did he acquire his possession? The solution, now received, of this question, is, that it was in consequence of an original contract, made, at some former distant period, between the king and the people. The terms of this contract have, indeed, been the subject of frequent and doubtful disputation. At the revolution, however, some of them were reduced to a certainty: and the existence of the contract itself was explicitly recognised. But a contract does not imply the idea of derivative power; it seems rather to imply an equality between the parties contracting. Besides; the crown, on whomever it may be devolved by virtue of this contract, still retains its descendible quality, and becomes hereditary in the wearer. Even in this enlightened century, the most determined champions of liberty in Great Britain have not instituted the claim, that the power of every part of government, the monarchical not excepted, should be founded on the authority of the people. Hear in what a humiliating manner one of their boldest and most energetick writers has described their power on this interesting subject. “The British liberties are not the grants of princes. They are original rights, conditions of original contracts, coequal with the prerogative, and coeval with the government.”g
How different is this language, and how different are these sentiments, from the language and sentiments, which, under our improved systems of government, we are entitled to hold and express! We have no occasion to enter a caveat against the supposition, that our liberties are the grants of princes. With us, the powers of magistrates, call them by whatever name you please, are the grants of the people. With us, no prerogative or government can be set up as coequal with the authority of the people. The supreme power is in them; and in them, even when a constitution is formed, and government is in operation, the supreme power still remains. A portion of their authority they, indeed, delegate; but they delegate that portion in whatever manner, in whatever measure, for whatever time, to whatever persons, and on whatever conditions they choose to fix.
Those, who have traced and examined the subject of the appointment of governours, find, or think they find, an irreconcilable opposition between the principles of what they admit to be sound theory, and the rules of what they contend to be exclusively the safe and eligible practice. That what appears right in theory may be wrong in practice, is, no doubt, a possible case: but I am apt to believe that, generally, this contrariety is more apparent than real: and proceeds either from inaccurate investigation, or from improper conduct.
It has been the sentiment of many writers, that to have elective governours is best in speculation; but that to have hereditary ones is best in fact. The sense of nations has often, on this subject, coincided with the sentiments of writers; and therefore, they have trusted to chance rather than to choice, the succession of those, who hold the reins of power over them. They admit, that the chance is even a bad one. They admit that one born to govern is, by education, generally disqualified, both in body and mind, rather than qualified for government. They admit, that he will probably be debased by ignorance, enervated by pleasure, intoxicated by flattery, and corrupted by pride. They admit, that this chance may give them a fool, a madman, a tyrant, or a monster: and yet they hold it safer to depend on all the caprices of this very chance, than to commit their fortune and their fate to the discernment of choice.
And whence this strong antipathy to choice? Popular clamours, popular disturbances, popular distractions, popular tumults, and popular insurrections are ever present to their view. The unfortunate and fluctuating example of Poland dances perpetually before their eyes. They reflect not on the cause of this example. Poland is composed only of slaves, headed and commanded by a few despots. Those despots have private purposes to serve; and they head their slaves as the instruments for executing those private purposes. In Poland, we search in vain for a people. Need we be surprised, that, at an election in Poland, where there are only tyrants and slaves, all the detestable and pernicious extremes of tyranny and slavery should unite?
But surely, in the United States, we have no occasion to be apprehensive of such an odious and destructive union. In the United States, we have freemen and fellow citizens. To freemen and fellow citizens, and to those selected, for this very purpose, by freemen and fellow citizens, we may trust the appointment of our first and most important magistrate. In this appointment, no one can participate, either immediately or indirectly, who does not possess a common interest with the community. We are justified, therefore, in abandoning chance, and confiding in choice: our practice corresponds with our theory; and our theory is admitted to be just. An election made by those, whom we have described, authorized by the constitution, directed by the laws, held on the same day and for the same purpose, but at different and at distant places—such an election may certainly be carried on with fairness and with regularity; and its event may be considered as the genuine production of design, and not as the casual result of a “lottery.”h
In one important particular—the unity of the executive power—the constitution of the United States stands on an equal footing with that of Great Britain. In one respect, the provision is much more efficacious.
The British throne is surrounded by counsellors. With regard to their authority, a profound and mysterious silence is observed. One effect, we know, they produce; and we conceive it to be a very pernicious one. Between power and responsibility, they interpose an impenetrable barrier. Who possesses the executive power? The king. When its baneful emanations fly over the land; who are responsible for the mischief? His ministers. Amidst their multitude, and the secrecy, with which business, especially that of a perilous kind, is transacted, it will be often difficult to select the culprits; still more so, to punish them. The criminality will be diffused and blended with so much variety and intricacy, that it will be almost impossible to ascertain to how many it extends, and what particular share should be assigned to each.
But let us trace this subject a little further. Though the power of the king’s counsellors is not, as far as I can discover, defined or described in the British constitution; yet their seats are certainly provided for some purpose, and filled with some effect. What is wanting in authority may be supplied by intrigue; and, in the place of constitutional influence, may be substituted that subtle ascendency, which is acquired and preserved by deeply dissembled obsequiousness. To so many arts, secret, unceasing, and well directed, can we suppose that a prince, in whose disposition is found any thing weak, indolent, or accommodating, will not be frequently induced to yield? Hence spring the evils of a partial, an indecisive, and a disjointed administration.
In the United States, our first executive magistrate is not obnubilated behind the mysterious obscurity of counsellors. Power is communicated to him with liberality, though with ascertained limitations. To him the provident or improvident use of it is to be ascribed. For the first, he will have and deserve undivided applause. For the last, he will be subjected to censure; if necessary, to punishment. He is the dignified, but accountable magistrate of a free and great people. The tenure of his office, it is true, is not hereditary; nor is it for life: but still it is a tenure of the noblest kind: by being the man of the people, he is invested; by continuing to be the man of the people, his investiture will be voluntarily, and cheerfully, and honourably renewed.
The president of the United States has such powers as are strictly and properly executive; and, by his qualified negative on the legislature, is furnished with a guard to protect his powers against their encroachments. Such powers and such a guard he ought to possess: but a just distribution of the powers of government requires that he should possess no more. In this important aspect, the constitution of the United States has much more regular, more correct, and better proportioned features, than are those of the constitution of Great Britain. It will be well worth while to trace this observation through various instances: its truth and its interesting consequences will, by this means, clearly appear.
As the king is the sole fountain of honour; he has, without limitation, the constitutional prerogative of creating peers; and of exalting to higher dignities those already created. He has also the power of appointing and promoting the bishops and archbishops. Those lords spiritual and temporal form one branch of the legislature. The number, therefore, and the rank of the members composing that branch depend entirely on the pleasure of the crown. This is a reprehensible dependency of the legislative on the executive power. Indeed, experience has proved it to be so. A single century has not yet revolved, since twelve peers were created at one time, with the avowed purpose of securing, by their necessary votes, the success of a favourite court system. A conviction, that, on any great crown emergency, recourse can be had to a similar expedient, will naturally lead the house of lords to be cautious, in an undue degree, of giving pointed opposition to the crown, however just or well grounded such opposition might be.
Another instance of the dependency of the house of lords on the king deserves to be mentioned: the speaker of that house, whose office it is to preside there and manage the forms of their business, is the lord chancellor, whose appointment and commission are at the pleasure of the crown.
Indeed, this undue and dangerous dependency of the house of lords seems to be acknowledged and dreaded—for, in one instance, provision is made against its effects—by the British constitution itself. It is the indisputable right of the house of commons—a right, over which they have constantly watched with a jealous solicitude—that all grants of parliamentary aid begin in their house. Several reasons have been assigned for this exclusive privilege—but the true one, arising from the spirit of the constitution, is this. The lords, being created, at pleasure, by the king, are supposed more liable to be influenced by the crown; and, being a permanent hereditary body, are, when once influenced, supposed more likely to continue so, than the commons, who are a temporary body elected by the people. It would, therefore, be extremely dangerous to give the lords any power of framing new taxes for the subject: it suffices that they have the power of rejecting, if they think the commons too lavish or improvident in their grants.
By the constitution of the United States, money bills originate in the house of representatives: the reason is, that as that house are more numerous than the other, and its members are elected more frequently; the most local and recent information of the circumstances of the people may be found there. But, as the senate derive their authority ultimately from the same origin with the other house; they have a right to propose and concur in amendments in these as well as in other bills.
But further; the power of conferring nobility is a source of influence, which the crown possesses over the house of commons, as well as over the house of lords. A coronet, and all the proud preeminences and gilded glories which encircle a coronet, are objects of ambition, whose tempting charms, few—very few indeed—are capable of resisting. Even the great commoner wishes and sighs to be something more. Will not his views be directed to that power, by which alone his wishes can be gratified? Will not his conduct receive a bias from the longing, expecting turn of his mind? When his towering hopes of elevation are suspended on the crown; will he easily run the risk of seeing them dashed to the ground, by speaking, and voting, and acting in opposition to its views and measures?
We are now arrived, in our progress, at another fountain, from which, in Great Britain, the waters of bitterness have plentifully flowed—I mean the fountain of office. We reprehend not the nature of this power, nor the place, where, by the British constitution, it is deposited. In every government there must be such a power; and it is proper, that it should be lodged in the hands of him, who is placed at the head of the executive department. What we censure is, that this power is not circumscribed by the necessary limitations. It may be—it is exercised in favour of the members of both houses of parliament. Offices of trust and profit are scattered, with a lavish hand, among those, by whom a return, very dangerous to the liberties of the nation, may be made; and from whom such a return is but too often expected.
This is the box of Pandora, which has been opened on Britain. To its poisonous emanations have been owing the contaminated and contaminating scenes of venality, of prostitution, and corruption, which have crowded and disgraced her political theatre. To the same efficacy have been owing the indiscriminate profligacy and universal degeneracy, which have been diffused through every channel, into which the treasures of the publick have procured admission. In the house of lords, this stream of influence may flow without measure and without end. Some attempts have been made to confine it in the house of commons; but they have been feeble and unavailing. If any member of that house accepts an office under the crown, his seat, it is true, is vacated; but he may be immediately reelected. This provision, flimsy as it is, extends not to officers in the army or navy accepting new commissions. The ardent aspirations after military preferment are thus left to be exerted, with all their energetick vigour, in promoting the designs of the crown, or of the ministers of the crown.
But fears, as well as hopes, operate in favour of the influence, which we have been tracing in so many directions. For the members hold their offices and commissions, and, consequently, may be dismissed from them, at the pleasure of the crown.
Indeed, this influence has been so great and so uniform, that for more than a century past, it has been found, that reliance could be placed on it implicitly. Accordingly, during that whole period, the king has never once been under the disagreeable necessity of interposing his negative to prevent the passing of an obnoxious law. It has been discovered to be a less ungracious, though not a less efficacious method, to stop its progress in one of the two houses of parliament.
To the power of the crown to confer offices on members of parliament, we may also ascribe those numerous and violent dissensions, which, on so many occasions, and some of them very critical ones, have convulsed the national councils, and sacrificed the national interests. Ample though the means are, which the crown can employ in gaining and securing members, by the offices in its gift, they are insufficient to gratify all. To a sure majority, the object must be confined. But of a majority, gained by the interest of the court, the necessary consequence is, a minority in opposition to its measures.i
The above is a plain and simple account of the manner, in which the parties in parliament have been formed, and in which they have, without interruption, been continued; though, on both sides, a very different account has been uniformly attempted to be palmed upon the publick. Neither side has chosen to give a true history and character either of themselves or of their antagonists: each finds its interest in appearing, and in representing the other, under a borrowed dress. While the influence of the crown, produced by offices of trust and profit bestowed upon members of parliament, shall continue, this state of formed and irreconcilable parties will continue also.
The result is, that a provision, by which the members of the legislature will be precluded, while they remain such, from offices, finds, with great propriety, a place in the constitution of the United States. In this important particular, it has a decided superiority over the constitution of Great Britain.
Perhaps the qualified negative of the president of the United States on the proceedings of the senate and house of representatives in congress, possesses advantages over an absolute negative, such as that vested in the crown of Great Britain over the proceedings of the lords and commons. To this last, recourse would not be had, unless on occasions of the greatest emergency. A determination not to interpose it without the last necessity, would prevent the exercise of it in many instances, in which it would be proper and salutary. In this manner, it would remain, like a sword always in the scabbard, an instrument, sometimes of distant apprehension, but not of present or practical utility. The exercise of the qualified negative is not an experiment of either dangerous or doubtful issue. A small bias it turns without noise or difficulty. To the operation of a powerful bias, which cannot be safely checked or diverted, it decently and leisurely gives way.
The qualified negative will be highly advantageous in another point of view: it will form an index, by which, from time to time, the strength and height of the current of publick opinions and publick movements may, with considerable exactness, be ascertained. Whenever it is exercised, the votes of all the members of both the houses must be entered on their journals. The single point, that there is a majority, will not be the only one, which will appear: it will be evinced also, how great that majority is. If it consists of less than two thirds of both houses, it seems reasonable, that the dissent of the executive department should suspend a business, which is already so nearly in equilibrio. On the other hand, if, after all the discussion, investigation, and consideration, which must have been employed upon a bill in its different stages, before its presentment to the prèsident of the United States, and after its return from him with his objections to it, two thirds of each house are still of sentiment, that it ought to be passed into a law; this would be an evidence, that the current of publick opinion in its favour is so strong, that it ought not to be opposed. The experiment, though doubtful, ought to be made, when it is called for so long and so loudly.
Besides; the objections of the president, even when unsuccessful, will not be without their use. If the law, notwithstanding all the unfavourable appearances, which accurate political disquisition discovered against it, proves, upon trial, to be beneficial in practice; it will add one to the many instances, in which feeling may be trusted more than argument. If, on the contrary, experience shows the law to be replete with all the inconveniences, which sagacious scrutiny foresaw in its operations, the disease will no sooner appear, than the remedy will be known and applied.
Another advantage, of very general and extensive import, will flow from the qualified negative possessed by the president of the United States. His observations upon the bills and acts of the legislature will, in a series of time, gradually furnish the most valuable and the best adapted materials for composing a practical system of legislation. In every successive period, experience and reasoning will go hand in hand; and will, jointly, produce a collection of accurate and satisfactory knowledge, which could be the separate result of neither.
By the British constitution, the power of judging in the last resort is placed in the house of lords. It is allowed, by an English writer on that constitution, that there is nothing in the formation of the house of lords; nor in the education, habits, character, or professions of the members who compose it; nor in the mode of their appointment, or the right, by which they succeed to their places in it, that suggests any intelligible fitness in the nature of this regulation.j Ecclesiasticks, courtiers, naval and military officers, young men, just of age, born to their elevated station, in other words, placed there by chance, are, for the most part, the members, who compose this important and supreme tribunal. These are the men, authorized and assigned to revise and correct the decisions, pronounced by the sages of the law, who have been raised to the seat of justice on account of their professional eminence, and have employed their lives in the study and practice of the jurisprudence of their country. There is surely something, which, at least in theory, appears very incongruous in this establishment of things. The practical consequences of its impropriety are, in a considerable degree, avoided, by placing in the house of lords some of the greatest law characters in the kingdom; by calling to their assistance the opinions of the judges upon legal questions, which come before the house for its final determination; and by the great deference which those, who are uninformed, naturally pay to those, who are distinguished by their information. After all, however, there is a very improper mixture of legislative and judicial authority vested and blended in the same assembly. This is entirely avoided in the constitution of the United States.
It may, perhaps, be objected, that, by this constitution, one branch of the legislature is to present, and the other is to try impeachments. The answer is obvious. Impeachments, and offences and offenders impeachable, come not, in those descriptions, within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects: for this reason, the trial and punishment of an offence on an impeachment, is no bar to a trial and punishment of the same offence at common law.
In the judicial establishments of Great Britain, there is, we cheerfully confess, much to admire, and much to imitate. The judges are the grand depository of the fundamental laws of the kingdom; and have gained a known and stated jurisdiction, regulated by certain and established rules, which cannot be altered, but by act of parliament. By the statute 13. W. III. c. 2. “An act for the further limitation of the crown, and better securing the rights and liberties of the subject,” provision is made, that after the said limitation shall take effect, the commissions of the judges shall be, not, as formerly, “durante bene placito,” but “quamdiu bene se gesserint;”1 that their salaries shall be ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament.
Though, in virtue of this law, the judges received commissions to hold their offices during their good behaviour; it was supposed, that their seats were immediately vacated by the demise of the crown. When their seats were vacated, their salaries terminated. A new commission, it is true, might be given, and, if given, must be given during good behaviour; but a new commission might also be refused, by the successour to the throne. Under the new commission, if given, a different salary might be assigned. In this state of dependence, not so degrading, indeed, as it had been, but still very precarious, and, as it respected the heir apparent of the throne, very embarrassing and humiliating, the judges of England continued till the first year of the reign of George the third.2
That Prince, soon after his accession, declared, from the throne, to both houses of parliament, that he looked upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subjects, and as most conducive to the honour of his crown. He, therefore, recommended it to the consideration of parliament, to make further provision for continuing the judges in the enjoyment of their offices during their good behaviour, notwithstanding the demise of the crown; and for enabling him to secure their salaries during the continuance of their commissions. Provision was accordingly made, by parliament, for both those purposes. But the judges are still liable to be removed by the king, upon the address of both houses of parliament.
This establishment for the administration of justice appears, in the opinion of Mr. Paley, no undiscerning judge of the subject, to approach so near to perfection, as to justify him in declaring, that a politician, who should sit down to delineate a plan for the dispensation of publick justice, guarded against all access to influence and corruption, and bringing together the separate advantages of knowledge and impartiality, would find, when he had done, that he had been transcribing the judicial constitution of England.k “It may teach,” continues he, “the most discontented among us to acquiesce in the government of his country, to reflect that the pure, wise, and equal administration of the laws forms the first end and blessing of social union; and that this blessing is enjoyed by him in a perfection, which he will seek in vain in any other nation of the world.”
Notwithstanding this high encomium, pronounced from a motive of which I cannot but approve, I hesitate not to institute a comparison between the judicial establishment of England, and that which is introduced by the constitution of the United States. Nay, I am sanguine, that, on a just comparison, the latter will be found to contain many very useful and valuable improvements on the former.
The laws, in England, respecting the independency of the judges, have been construed as confined to those in the superiour courts.l In the United States, this independency extends to judges in courts inferiour as well as supreme. This independency reaches equally their salaries and their commissions.
In England, the judges of the superiour courts do not now, as they did formerly, hold their commissions and their salaries at the pleasure of the crown; but they still hold them at the pleasure of the parliament: the judicial subsists, and may be blown to annihilation, by the breath of the legislative department. In the United States, the judges stand upon the sure basis of the constitution: the judicial department is independent of the department of legislature. No act of congress can shake their commissions or reduce their salaries. “The judges, both of the supreme and inferiour courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.”m It is not lawful for the president of the United States to remove them on the address of the two houses of congress. They may be removed, however, as they ought to be, on conviction of high crimes and misdemeanors.
The judges of the United States stand on a much more independent footing than that on which the judges of England stand, with regard to jurisdiction, as well as with regard to commissions and salaries. In many cases, the jurisdiction of the judges of the United States is ascertained and secured by the constitution: as to these, the power of the judicial is coordinate with that of the legislative department. As to the other cases, by the necessary result of the constitution, the authority of the former is paramount to the authority of the latter.
It will be proper to illustrate, at some length, the nature and consequences of these important doctrines concerning the judicial department of the United States; and, at the same time, to contrast them with the doctrines held concerning the same department in England. Much useful and practical information may be drawn from this comparative review.
It is entertaining, and it may be very instructive, to trace and examine the opinions of the English courts and lawyers concerning the decision, which may be given, in the judicial department, upon the validity or invalidity of acts of parliament.
In some books we are told plainly, and without any circumlocution or disguise—that an act of parliament against law and reason is, therefore, voidn —that, in many cases, the common law will control acts of parliament; and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed; the common law will control it, and adjudge such act to be void. Some statutes are made against law and right, which those who made them perceiving, would not put them in executiono —that an act of parliament made against natural equity, as to make a man judge in his own cause, is void in itself; for jura naturae sunt immutabilia, and they are leges legum.p
My Lord Chief Justice Holt expresses himself, upon this delicate and embarrassing subject, in his usual blunt and decided manner: “It is a very reasonable and true saying, that if an act of parliament should ordain, that the same person should be a party and a judge, or, which is the same thing, judge in his own cause; it would be a void act of parliament; for it is impossible that one should be judge and party; for the judge is to determine between party and party, or between the government and the party; and an act of parliament can do no wrong; though it may do several things, that look pretty odd.”q
These doctrines and sayings, however reasonable and true they appear to be, have been, nevertheless, deemed too bold; for they are irreconcilable with the lately introduced positions concerning the supreme, absolute, and uncontrollable power of the British parliament. Accordingly, Sir William Blackstone, on the principles of his system, expresses himself in the following manner, remarkably guarded and circumspect, as to the extent of the parliamentary power. “If there arise out of acts of parliament, collaterally, any absurd consequences, manifestly contradictory to common reason; they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely—that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done, which is unreasonable; I know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that, where the main object of a statute is unreasonable, the judges are at liberty to reject it: for that were to set the judicial power above that of the legislature, which would be subversive of all government.” “No court has power to defeat the intent of the legislature, when couched in such evident and express words, as to leave no doubt concerning its intention.”r
The successour of Sir William Blackstone in the Vinerian chair walks in his footsteps. “It is certain,” he admits, “no human authority can rightfully infringe or abrogate the smallest particle of natural or divine law; yet a British judge, of highly deserved estimation, seems in some measure unguarded in asserting from the bench, that an act of parliament made against natural equity, is void in itself. The principle is infallibly true; the application of it, and the conclusion, dangerous. We must distinguish between right and power; between moral fitness and political authority. We cannot expect that all acts of legislators will be ethically perfect; but if their proceedings are to be decided upon by their subjects, government and subordination cease.”s
It is very true—we ought to “distinguish between right and power:” but I always apprehended, that the true use of this distinction was, to show that power, in opposition to right, was devested of every title, not that it was clothed with the strongest title, to obedience. Is it really true, that if “the parliament will positively enact an unreasonable thing—a thing manifestly contradictory to common reason—there is no power that can control it?” Is it really true that such a power, vested in the judicial department, would set it above the legislature, and would be subversive of all government? If all this is true; what will the miserable, but unavoidable consequence be? Is it possible, in the nature of things, that all which is positively enacted by parliament can be decreed and enforced by the courts of justice? It will not be pretended. The words in two different laws may be clearly repugnant to one another. The law supposes that, sometimes, this is the case; and accordingly has provided, as we are told in the Commentaries, that, in this case, the later law takes place of the elder. “Leges posteriores, priores contrarias abrogant,”3 we are told, and properly told, is a maxim of universal law, as well as of the English constitutions.t Suppose two such repugnant laws to be produced in the same cause, before the same court: what must it do? It must control one, or obey neither. In this last instance, the remedy would be worse than the disease: but there is not the least occasion to have recourse to this desperate remedy. The rule which we have cited from the Commentaries, shows the method that should be followed. In the case supposed, the first law is repealed by the second: the second, therefore, is the only existing law.
Two contradictory laws, we have seen, may flow from the same source: and we have also seen, what, in that case, is to be done. But two contradictory laws may flow likewise from different sources, one superiour to the other: what is to be done in this case?
We are informed, in another part of the Commentaries, that, “on the two foundations of the law of nature, and the law of revelation, all human laws depend; that is to say, no human laws should be suffered to contradict these”—“that, if any human law should enjoin us to commit what is prohibited by these, we are bound to transgress that human law, or else we must offend both the natural and the divine.u What! are we bound to transgress it?—And are the courts of justice forbidden to reject it? Surely these positions are inconsistent and irreconcilable.
But to avoid the contradiction, shall it be said, that we are bound to suppose every thing, positively and plainly enacted by the legislature, to be, at least, not repugnant to natural or revealed law? This may lead us out of intricate mazes respecting the omnipotence; but, I am afraid, it will lead us into mazes equally intricate and more dangerous concerning the infallibility of parliament. This tenet in the political creed will be found as heterodox as the other.
“I know of no power,” says Sir William Blackstone, “which can control the parliament.” His meaning is obviously, that he knew no human power sufficient for this purpose. But the parliament may, unquestionably, be controlled by natural or revealed law, proceeding from divine authority. Is not this authority superiour to any thing that can be enacted by parliament? Is not this superiour authority binding upon the courts of justice? When repugnant commands are delivered by two different authorities, one inferiour and the other superiour; which must be obeyed? When the courts of justice obey the superiour authority, it cannot be said with propriety that they control the inferiour one; they only declare, as it is their duty to declare, that this inferiour one is controlled by the other, which is superiour. They do not repeal the act of parliament: they pronounce it void, because contrary to an overruling law. From that overruling law, they receive the authority to pronounce such a sentence. In this derivative view, their sentence is of obligation paramount to the act of the inferiour legislative power.
In the United States, the legislative authority is subjected to another control, beside that arising from natural and revealed law; it is subjected to the control arising from the constitution. From the constitution, the legislative department, as well as every other part of government, derives its power: by the constitution, the legislative, as well as every other department, must be directed; of the constitution, no alteration by the legislature can be made or authorized. In our system of jurisprudence, these positions appear to be incontrovertible. The constitution is the supreme law of the land: to that supreme law every other power must be inferiour and subordinate.
Now, let us suppose, that the legislature should pass an act, manifestly repugnant to some part of the constitution; and that the operation and validity of both should come regularly in question before a court, forming a portion of the judicial department. In that department, the “judicial power of the United States is vested” by the “people,” who “ordained and established” the constitution. The business and the design of the judicial power is, to administer justice according to the law of the land. According to two contradictory rules, justice, in the nature of things, cannot possibly be administered. One of them must, of necessity, give place to the other. Both, according to our supposition, come regularly before the court, for its decision on their operation and validity. It is the right and it is the duty of the court to decide upon them: its decision must be made, for justice must be administered according to the law of the land. When the question occurs—What is the law of the land? it must also decide this question. In what manner is this question to be decided? The answer seems to be a very easy one. The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the latter is void, and has no operation. In this manner it is the right and it is the duty of a court of justice, under the constitution of the United States, to decide.
This is the necessary result of the distribution of power, made, by the constitution, between the legislative and the judicial departments. The same constitution is the supreme law to both. If that constitution be infringed by one, it is no reason that the infringement should be abetted, though it is a strong reason that it should be discountenanced and declared void by the other.
The effects of this salutary regulation, necessarily resulting from the constitution, are great and illustrious. In consequence of it, the bounds of the legislative power—a power the most apt to overleap its bounds—are not only distinctly marked in the system itself; but effectual and permanent provision is made, that every transgression of those bounds shall be adjudged and rendered vain and fruitless. What a noble guard against legislative despotism!
This regulation is far from throwing any disparagement upon the legislative authority of the United States. It does not confer upon the judicial department a power superiour, in its general nature, to that of the legislature; but it confers upon it, in particular instances, and for particular purposes, the power of declaring and enforcing the superiour power of the constitution—the supreme law of the land.
This regulation, when considered properly, is viewed in a favourable light by the legislature itself. “It has been objected,” said a learned memberv of the house of representatives, in a late debate, “that, by adopting the bill before us, we expose the measure to be considered and defeated by the judiciary of the United States, who may adjudge it to be contrary to the constitution, and therefore void, and not lend their aid to carry it into execution. This gives me no uneasiness. I am so far from controverting this right in the judiciary, that it is my boast and my confidence. It leads me to greater decision on all subjects of a constitutional nature, when I reflect, that, if from inattention, want of precision, or any other defect, I should do wrong, there is a power in the government, which can constitutionally prevent the operation of a wrong measure from affecting my constituents. I am legislating for a nation, and for thousands yet unborn; and it is the glory of the constitution, that there is a remedy for the failures even of the legislature itself.”
It has already appeared, that the laws, in England, respecting the independency of the judges, have been construed as confined to those in the superiour courts. In many courts, nay in almost all the courts, which have jurisdiction in criminal, even in capital cases, the judges are still appointed and commissioned occasionally, and at the pleasure of the crown. Those courts, though possessing only a local jurisdiction, and confined to particular districts, are yet of a general nature, and are universally diffused over the kingdom. Such are the courts of oyer and terminer and general gaol delivery. They are held twice in every year in every county of the kingdom, except the four northern ones, in which they are held only once, and London and Middlesex, in which they are held eight times. By their commissions, the judges of those courts have authority to hear and determine all treasons, felonies, and misdemeanors; and to try and deliver every prisoner who shall be in the gaol, when they arrive at the circuit town, whenever indicted, or for whatever crime committed. Sometimes also, upon particular emergencies, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences which stand in need of immediate inquiry and punishment. Those courts are held before the king’s commissioners, among whom are usually—but not necessarily, as it would seem—two judges of the courts at Westminster.w
It is somewhat surprising, that, in a nation where the value of liberty and personal security has been so long and so well known, less care has been taken to provide for the independency of the judges in criminal than in civil jurisdiction. Is property of more consequence than life or personal liberty? Is it more likely to become the selected and devoted object of ministerial vengeance or resentment? If peculiar precaution was necessary or proper to ensure the independence of the judges on the crown, one would think it most reasonable to apply that precaution to the independence of those judges, who exercise criminal jurisdiction. Even treason may be tried before judges, named, for the occasion, and during pleasure, by him, who, in law, is supposed to be personally as well as politically offended.
To the constitution of the United States, and to those who enjoy the advantages of that constitution, no judges are known, but such as hold their offices during good behaviour.
With regard to the institution and establishment of juries, as well as those of judges, an advantage is possessed under the constitution of the United States, greater than what is possessed under the constitution of Great Britain. This subject deserves to be placed in the clearest and strongest point of view.
To be tried only by men of one’s own condition, is one of the greatest blessings—to know that one can be tried only by such men, is one of the greatest securities—which can be enjoyed under any government.
If the trial of causes was committed entirely to one selected body of men, deprived, by their situation, of having many opportunities of knowing particularly the circumstances and characters of the parties, who come before them; it could not be expected, that the proper and practical adjustment of facts to persons would, in every instance, be made. The transactions of life will be best investigated by a competent number of sensible and unprejudiced jurymen, summoned and assembled for each particular cause. Such men will be triers not only of the facts; but also of the credibility of the witnesses. They will know whom and what to believe, as well as whom and what to hear. Truth will be estimated by the character, and not by the number, of those, who give their testimony. The testimony of one witness will not be rejected merely because it stands single; nor will the testimony of two witnesses be believed, if it be encountered by reason and probability. These advantages of a trial by jury are important in all causes: in criminal causes, they are of peculiar importance.
In criminal causes, the accusation charges not only the particular fact, which has been committed, but also the motive or design, to which it owed its origin, and from which it receives its complexion. This design is often so closely interwoven with the transaction, that the elucidation of both depends on a collected view of particulars, arising not merely from the testimony, but also from the conduct and character of the witnesses, and sometimes likewise from the character and conduct of the person accused. Of such conduct and character, men of the same condition with that person, and probably of the same condition with the witnesses too, are the best qualified to make the proper comparison and estimate; and consequently to determine, upon the whole, whether the conduct of the prisoner, comprehending both the fact and the motives, is, or is not, within the meaning of the law, upon which the accusation against him is founded.
This institution does honour to human policy: it is the most excellent method for the investigation and discovery of truth; and the best guardian of both publick and private liberty, which has been hitherto devised by the ingenuity of man. We are told by the celebrated Montesquieu, that Rome, that Sparta, that Carthage—states, once so free and so prosperous—have lost their liberties, and have perished. Their fate he holds up to the view of other states, as a memento of their own. But there is one consolatory distinction, which he did not take, and which we will apply in our favour. In Rome, in Sparta, in Carthage, the trial by jury did not exist, or was not preserved. Liberty can never be insecure in that country, in which “the trial of all crimes is by jury.”x
Is it not, then, of the last consequence, that, in criminal causes, this most excellent mode of trial should be placed on the most solid and permanent foundation? Is it enough that its establishment be legal,—supported by the legislature? Is it not proper that it should be constitutional—supported by authority superiour to that of the legislature? Such an establishment it has not in Great Britain; but it has in the United States.
I have now finished the parallel between the pride of Europe—the British constitution—and the constitution of the United States. Let impartiality hold the balance between them: I am not solicitous about the event of the trial.
THE END OF THE FIRST VOLUME.
[a. ]1. Shaft. 108.
[b. ]Diss. on Part. let. 10. p. 151. 152.
[c. ]2. Paley. 203. 205.
[d. ]4. Bl. Com. 435. 436.
[e. ]2. Paley. 203.
[f. ]1. Bl. Com. 172.
[g. ]Bol. Rem. let. 4.
[h. ]See Bol. Pat. King. 89.
[i. ]It was the saying of King William, that if he had places enough to give, the names of whig and tory would soon be lost.
[j. ]2. Paley. 282. 283.
[1. ]“Not during good pleasure,” but “as long as they conduct themselves well.”
[2. ]George III (1783–1820) was king of England from 1760 to 1820.
[k. ]2. Paley. 284. 285.
[l. ]1. Bl. Com. 267.
[m. ]Con. U. S. art. 3. s. 1.
[n. ]4. Rep. 13.
[o. ]8. Rep. 118.
[p. ]Hob. 87. “The laws of nature are immutable, and they are the laws of laws.”
[q. ]12. Mod. 687. 688.
[r. ]1. Bl. Com. 91.
[s. ]El. Jur.(4to.) 48.
[3. ]“Later laws annul earlier laws to the contrary.”
[t. ]1. Bl. Com. 59.
[u. ]Id. 42. 43.
[w. ]4. Bl. Com. 266. 267.
[x. ]Con. U. S. art. 3. s. 2.
[4. ]Elias Boudinot (1740–1821) was a prominent American politician and lawyer. He served in the U.S. House of Representatives for New Jersey and as president of the Continental Congress in 1782–1783.
The readings for this session are in 2 parts. The first is not available online and is John DeWitt, “Essays I and II, October 22 and 27, 1787 from The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 190-198. The 2nd is below.
Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: Address of the Minority of the Pennsylvania Convention December 12, 1787
Accessed from oll.libertyfund.org/title/669/189918 on 2008-08-21
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.