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Section the Ninth

THE LEGAL POLICY OF THE UNITED STATES

Montesquieu’s analysis of forms of government, is neither moral nor numerical. He divides them into ‘republican, monarchical, and despotick,’ and the presence or absence of law constitutes his criterion of liberty and despotism. But having by these definitions disclosed a partiality for his country, he proceeds to truth, by proving that civil laws are the instruments for fostering or destroying both free and despotick governments, and that neither can be preserved, except by an analogy of legal to constitutional principles. Whatever analysis of governments we adopt must also be an analysis for legislation. If we adopt the numerical, the same laws cannot be congenial with the three, nor with any two of its forms; if the moral, it is still more difficult to reconcile the same laws, with both good and bad principles. The necessity of civil law, to foster or impair every form of government, makes it equally indispensable to a free nation and a monarch, to be able to distinguish its character and effects, for the preservation of liberty or despotism. A conviction that republican forms beget the first, and monarchical the second, united with an ignorance of the laws adapted to the preservation or introduction of either, excites the fermentation of mobs, and ends in the tranquillity of tyranny.

An incapacity to discern the difference between a power to divide and to protect property, or between a national militia and a mercenary army, is an incapacity for the preservation of a free government. As the first member of each contrast corrupts or enervates nations, they belong to the evil class of moral principles. Individuals, parties or governments use all the means placed in their hands to obtain their ends; and a dependence for defence upon a mercenary army, renders a nation unable to defend itself. The jesuitical maxim ‘that every thing is lawful to effect good end,’ makes every thing lawful in the eyes of governments and parties, which is necessary to effect their own ends; because self love convinces all men that their ends are good. Every principle, bad or good, drawn from the moral qualities of an individual, applies to a multitude. A power making one man a despot, will make despots of a party of men; the only difference being, that one species of despotism resembles a scorching fire; the other, a consuming conflagration. Parties clothed with evil or despotick powers, destroy free governments with a rage and rapidity far outstripping the capacity of individual tyrants, because many men can do more mischief than one. This fact demonstrates the incapacity of the numerical analysis for informing us whether a government is free or despotick, and explodes the hideous doctrine ‘that the will of a majority can do no wrong,’ under which parties, in imitation of kings, often endeavour to hide atrocious legal violations of good moral principles. Many men can even do more wrong to one or a few, than one or a few can do to many. This analysis is still more defective as a criterion of good or bad laws, because those of its best form are not necessarily good, and no commixture of its several forms can make arbitrary or fraudulent laws, free or just.

The principle ‘that a government and its laws must be of the same moral nature to subsist together,’ furnishes the only existing security for the preservation both of a free and an arbitrary form of government. Monarchy cannot subsist upon republican laws, nor a republick upon monarchical. The numerical analysis can inform us, whether we are governed by one, a few, or many persons, but its whole stock of knowledge is expended in the performance, of this paltry office, and it is utterly unable to give us any instruction as to the mode of preserving the selected form of government. But an analysis founded in moral principles, furnishes nations with constitutional restraints upon governments, and with perpetual sentinels faithfully warning them of the approach of their worst foes; bad laws. It transfers popular attention from the persons composing the numerical analysis, to the principles by which it is itself composed; and settles a wise veneration or a just hatred upon the good and bad divisions of these principles, instead of that ridiculous veneration for a president and a congress, a king and a parliament, or an emperor and a senate, which never discloses the approach of a single foe to liberty. A moral analysis alone can teach nations these only mode of sustaining a free government. It can detect attempts to destroy our moral constitutional principles of a division of power between the people and the government, or between the general and state governments, by political or civil laws. And it can keep us attentive to the fact, that a power in a government of any form, to deal out wealth and poverty by law, overturns liberty universally; because it is a power by which a nation is infallibly corrupted; and the legislature, whose laws caused the corruption, is at length forced by the national depravity, to abridge the liberty of the people; or an usurper makes it a strong argument, even with good men, for erecting a despotick government. A power in Congress, for instance, of influencing the wealth or poverty of states by taxing exports and making roads or canals; or of individuals, by charters; would be used by successive parties for self preservation, with an activity, by which government would exchange the duty of protecting for the privilege of regulating property. The alternative of receiving or yielding the golden fleece, according to the will of these parties, would suddenly excite an equal degree of baleful activity among the people, to gain the one and to avoid the other; and soon overturn the whole catalogue of moral principles, necessary for the preservation of a free form of government. In whatever numerical class a government is arranged, a power of advancing the wealth of one part of the nation, by civil laws, will be used by its successive administrators to obtain a corrupt influence, wholly inconsistent with any good moral principles interwoven in a constitution, and certainly destructive of them.

Every party of interest, whether a noble, a religious, or a military order; or created by a corrupting degree of legislative or executive patronage; or by usurping a power of regulating property by means of paper credit, charters or fraudulent wars; is the instrument and ally of the power by which its interest can be fed or starved. It must acquire an influence over legislation, both to do its own work, and the work of the power it serves. It can by law slip under governments a new substratum, without altering a feature of the numerical analysis. And it will be invariably purchased at the publick expense, by the political party in possession of the government, at a rate proportioned to the service it may be able to render.

This game between political and pecuniary parties, is precisely the cause by which free, moderate, and honest forms of government are destroyed; it inflicts heavier taxation, than any other species of misrule; and it cannot be carried on, except by a legislative power to regulate wealth and poverty. In England this power is complete, and has scattered every where parties of interest of all sizes, and individuals, paid for their services directly or indirectly by the political party in power, at the national expense, and ready to serve any political party whatsoever for pay. Hence arise the excessiveness of taxation, the parliamentary corruption, and the frequent wars of that country. None of our constitutions intended to endow legislation with this power of regulating property, thus exercised in England, because its effects there demonstrated, that the moral principles upon which they were built, could not subsist in union with such a power; and that it would have amounted to a provision in them all, for absolving the government from the moral restraints previously imposed. But political parties have attempted to acquire it in imitation of the English precedents, (which will for ever be admired by men in power) as in the cases of a legal appreciation of paper stock far beyond the price at which it was purchased, of banks, and of the Yazoo report; and if the system of changing the principles of a government by laws is not well understood by the people, they will go on, and at length make sales of national property to stockjobbers, if stockjobbers will sell them support even in the form of a war.

A legislative power of regulating wealth and poverty, is a principle of such irresistible ascendency, as to bring all political parties to the same standard, and to make it quite indifferent to nations, which shall prevail. It is the solution in which is found the political identity of the whig and tory parties of England, in the exercise of power, during their highest state of acrimony; and in which this acrimony was at length lost.

It is matter of surprise that mankind should owe their greatest calamities to the two most respectable human characters, priests and patriots, from a political gluttony, like that of swallowing too much food, however good. If responsibility to God cannot cure priests of the vices which infect legislative parties of interest, what security lies in a responsibility to man? If the love of souls cannot awaken integrity, laid to sleep by this species of legislative patronage, will it be awakened by a love of wealth and power? But nations have no right to complain, because they corrupt their priests and patriots by temptations, which human nature has never been able to resist. Our policy, rejecting a reliance upon either, because they are men, has endeavoured to exalt political law from a numerical form, into a science; and to substitute permanent principles for fluctuating passions. But if laws can distribute wealth and power, among individuals arranged in combinations to acquire both; and if the fashion should prevail of scanning them by party comments, and not by honest principles; our beautiful experiment of confiding for a free government in good moral principles rather than in priests or patriots, will be exchanged for a confidence in stockjobbers and various other parties of interest.

These parties plead patriotism to ignorance and credulity, and offer wealth and power to avarice and ambition. The most fraudulent is loudest in professions of zeal for the publick good, and like the Mississippi and South Sea projects, is often the most successful; because the vicious principle of creating wealth by law, having debauched the minds of the audience, no dishonesty appears to be attached to any excesses of legislative robbery. Audacity or delusion at length inculcates an opinion, that he who refuses to surrender his conscience and his understanding to some party, is a knave or a fool; a knave, in pretending to honesty under a legislative distribution of wealth; and a fool, for preferring hopeless efforts to serve the publick, to his own aggrandizement at the publick expense. Thus the maxims taught by the legal intercourse between political and pecuniary parties reverse the dictates of common sense and common honesty. Knaves or fools only, surrender their duties and rights to party despotism. Knaves, to get a share in its acquisitions; fools, because they are deceived. Can an honest man of sound understanding think himself bound by wisdom or duty, to give or sell himself to one of two parties, prompted by interest and ambition to impair the publick good? Are men bound by wisdom or honour to take side with one of two competitors, if both are robbers or usurpers? On the contrary, as neither could succeed except by dividing the national force between them, a nation of fools only could be drawn into a division, in which the success of either party, is a calamity to a majority of both. And as civil government affords wealth and power to a very small proportion of a nation, if those who reap neither from it, are seduced into an opinion that they ought to enlist under one of two small parties contending for both, they are only entitled to the same character, as being the instruments of their own misfortunes, in all the fluctuations of victory. Parties, like usurpers, acquire nothing from each other. The rich spoils of a gallant but deluded nation, were the fruits gathered by the whig and tory parties from the opinion—that it is knavery to adhere to the publick interest, and folly to exercise one’s own judgement. Thus election, designed to advance this interest, is converted into an instrument for parties; and that which is successful, hastens to reap the transitory harvest by legislative abuses, during the delirium of victory, until its crimes make room for a rival, equally unrestrained, which follows its precedents, repeats its frauds, and experiences its fate. By considering a zeal for party as more wise or honourable, than a zeal for good or bad laws, a nation is thus perpetually suspended in a state of political warfare, pregnant only with aggravations of calamity.

Election in the United States becomes more contemptible than in England, when degraded by a legal power of regulating wealth and poverty, into a whig or a tory, a Pitt or a Fox, if it is seduced by a worthless maxim to commit the crime, for which the English parliament are wise enough to obtain a valuable consideration. It appoints the prime minister of our sovereignty. If like the corrupted English interests, which govern the appointment of theirs, it was well paid for its work; or if like the king by whom this appointment is nominally made, it was lavishly endowed without expense to itself: it might boast of having sold its conscience and understanding for something solid; but to give away both, for a hollow notion of adhering to a party, that it may be fleeced and not bribed, would be an act of self abasement demonstrating that it was unable to distinguish between good and bad principles, and was of course flattered, despised and cheated. A sovereignty, popular or monarchical, ignorant of the principles by which it is preserved or destroyed, is first a cypher, then a tool, and finally the victim of its own servants. The folly both of a foolish people and a foolish king, consists in suffering the attention to be diverted from the moral nature of the acts and laws of their servants, to the frivolous names and treacherous professions of contending parties and rival courtiers.

The evil moral qualities of human nature, as natural to parties as to man, constitute the evidence in favour of restraining them by good moral principles, and evince the absurdity, in every case, of losing these principles in a career after names, to be equivalent to that of shutting the eyes for the sake of substituting confidence for seeing. The political party which brought Charles the first to the block, made sundry good laws for checking the regal, hierarchical, and titled parties of interest, from which the petition of right for repairing the usurpations of his two sons, extracted all its merit. Yet it soon degenerated into a fraudulent and oppressive party of interest itself. This case teaches us, that legislation can change the nature of a government, without changing its form; that the numerical analysis, being unable to discern such changes, describes a government by the same name, after it has undergone a material change; that without understanding the moral principles of laws, nations can neither foresee nor regulate revolutions; and that neither party principles, merits nor names, are a good security for the continuance of party patriotism.

The pigments of the human character, by which this last fact is exhibited, are so numerous, that the habit of overlooking them is like the simplicity of a child, unable to recognise his own image. Eyes, seeing power eternally corrupting men, and minds, acting upon a supposition that it does not, make up the foolish compound which has legislated for the world; and the world has been enslaved. The patriots Cæsar, Cromwell and Bonaparte, and the parties whig and tory, federal and republican, have acted and legislated alike, because men are influenced by power as all kinds of water are by rum. No name nor badge can enchant a man against a moral law impinging on his nature. If a partridge was called an ostrich, it would not save him from the talon of the hawk; nor can a man be shielded against the effects of power by writing ‘patriot’ on his forehead. Whenever, therefore, the popularity of parties or individuals, shall free law from a strict examination at the tribunal of moral principles, a revolution is effected or at hand.

The constitutional power of the president to influence the legislature by his patronage, and the unconstitutional practice of its members in influencing the election of a president, might be moulded into a powerful ally of a system of legislation, neither suggested nor examined by good moral principles. Its tendency is to weaken, and at length to destroy, the responsibility of the president to the people; to extend the corruption of patronage in the legislature, and to defeat the good effects designed to be produced by the division of power between the legislative and executive departments. By the constitution of Virginia, a patronage operates visibly upon the independence of that branch of the legislature, numerically inferior, because its members can only gain the best offices in the state by the favour of the other. A cross patronage between the president and congress, more than doubles the operation of this mode of appointment against the principle of dividing power. In Virginia, the evil is mitigated by the absence of any executive patronage over the members of the legislature. But if the president should become the patron of congress, and congress the patron of the president, checks would be converted into accomplices, and a secret and intricate consolidation of those divisions, intended to restrain legislation within the verge of good moral principles, would necessarily ensue. The political sect arising from this commerce, would resort to law to strengthen an evasion of the constitution. The obstacles against the institution of titled orders, would turn its attention towards the creation of parties of interest in other forms, to secure its power and gratify its wishes. And besides, all the artifices for inflaming the passions of the vulgar, and bewildering the understandings of the ignorant; an identification of the government with the nation to free the party in power from responsibility; a national debt to chain the wealthy to the combination by the same strong ligament which binds them in France to Bonaparte; a direction of the publick admiration to military men; to reduce those most likely to oppose arbitrary laws, to a state of inferiority; a neglect of the militia, under the doctrine that it is unfit to resist foreign armies, so as to make it unable to resist domestick; a gradual reduction of the state governments to insignificance; and a perpetual increase of the energy of government, under the pretext of extensive territory; being all within the scope of the powers of the general government, will all be summoned to the aid of any combination between political departments; and a power of regulating property by law would dig the fosse of corruption, and render the circumvallation for its defence, impregnable to its slaves. Against this host of dangers, no security occurs to me, except a strict scrutiny into laws and all the measures of government, by the light of good moral principles.

Our policy has attempted to wrest war from the hands of executive power, lest it should be used as a means of making legislative an instrument for advancing its projects, and representation a mask to conceal them. War is the keenest carving knife for cutting up nations into delicious morsels for parties and their leaders. It swells a few people to a monstrous moral size, and shrivels a multitude to an equally unnatural diminutiveness. It puts arms into the hands of ambition, avarice, pride, and self love, and aggravates these passions by erecting the holders into a separate interest, which without arms has in no shape been made just or honest by the restraints of moral principles or didactick prohibitions. It breeds a race of men, nominally heroes, mistaken for patriots, and really tyrants. It enables knaves and traitors to delude the multitude into a belief that real patriots are knaves and traitors, and thus to force good men to become the instruments of bad, to avoid the persecutions of this delusion. And without a sound militia, it is more dangerous to our policy than superstition, nobility, and exclusive privilege united; because these could only sap it slowly, whilst that can carry it by storm. Hence this instrument, so well adapted for its destruction, is attempted to be withheld from executive power. But no provisions enforce the prohibition, and no precautions against executive intrigues with party spirit, the influence of patronage, nor the precipitancy of passions, are resorted to. The most trivial law is suspended for the president’s concurrence, and the most trivial amendment of the constitution must receive a chaste national approbation; but a law for war is absolved from this check, and unsubjected to publick opinion. Party legislation converts the constitutional precaution into an aggravation of the danger, and restores the knife to the president, freed from any responsibility for using it. Twenty six per centum of the legislature, being the dictators of a party predominancy of fifty one per centum, in virtue of the party loyalty spread by fashion over perjury and treason, like embroidery over putrescence, holds in fact the power of declaring war; and political fashion, having thus diminished the work for the blandishments of flattery, the prejudices of party spirit, and the allurements of executive patronage, then covers the real authors of war against responsibility, under the canopy of a fraudulent majority, and the justification of a national concurrence, drawn from a false appearance. The gradation of reasoning, ‘that each individual ought to be governed by the majority of some party; that a majority thus obtained, is a genuine republican majority; and that it is both the government and the nation,’ seizes upon the amiable and honest respect of the people for their representatives, and rewards them for their virtues by the calamities of a war, entered into contrary to the true wishes of themselves, and of those who have thus sacrificed a virtuous to a wicked allegiance. Other less important consequences of party allegiance might have been cited, to illustrate the impossibility of maintaining a free government, unless the majority of a nation shall continually try two parties struggling for wealth and power in a free government, not by prejudices and delusions, which these parties in their pleadings infuse, but by fixed moral principles. Being as corrupt as hierarchies or noble orders, and struggling for the same objects by which such parties are invigorated, they draw their qualities from the same infusion; and a nation divided between them in a constant political warfare, can only win by their alternate victories that kind of liberty, to be reaped from a similar warfare under the banners of an order of priests, and an order of nobles.

Whilst the preservation of a federal form of government, dictated precautions against its subversion by political law, it is left exposed in a considerable degree to the lever of civil law and party spirit united. Had legislative chastity been secured against the addresses of executive patronage, and laws for making war been subjected to the concurrence of two thirds of the states, precautions better than those existing might have prevented the differences between the states, and alleviated the animosities between the parties, which seem better calculated to foster provincial hatreds, and the gradual approach of burdensome government, than wealth, happiness, and liberty. The didactick state authority is no match for a power concentrated in a few hands, and able by law to make war, and to require ‘all the revenue a nation can pay.’ Add to this force the power of distributing wealth by law, and the division of might between the general and state governments, would be well represented by a giant armed with a scimitar, and an infant, with a needle. Heavy taxes, loaning, war and legal devices for distributing wealth and poverty, are the modern scalping knives, tomahawks and rifles, used by avarice and ambition, because the more merciful weapons, superstition and nobility, having been broken by knowledge, more cruel became necessary, to intimidate, or more expensive, to corrupt her; and mankind must hence suffer, on account of an accession of knowledge, an accession of oppression, or piously acknowledge the divine favour, by reaping from it the greatest of sublunary blessings. Legislation must either be restrained within the pale of good moral principles, by the exertion of this modern dispensation; or it must more extensively than ever resort to bad ones, to suppress its effects. And neither monarchy, faction, avarice or ambition, will be able hereafter to effect their ends in the mild modes of ancient oppression, until ancient ignorance is restored, as was evinced by the revolutionary struggles and their termination in France.

Constitutions are often converted from tests for law, into snares for ignorance, by the ingenious verbal criticisms, to which the vices, the errours, and the passions of parties will often resort. If the single words ‘religion and republick,’ are often made to cover superstition and tyranny, what party can fail to find shelter for any law under a long constitution; but good moral principles cannot be made bad by words, nor bad, good. Constitutional powers, being all subordinate and subservient to the end of preserving a free and moderate government, do not admit of any constructions subversive of these ends. If a nation should erect a temple, and bestow on trustees powers for its preservation, no construction of these powers could be correct, by which its pillars would be gradually weakened, and the edifice finally destroyed. Even no power expressly given, can be constitutionally used to defeat the intention for which it was given. Congress are empowered to raise armies and to borrow money; but by using one power to erect a military aristocracy, like the French, or the other to erect a stock aristocracy, like the English, they would be guilty of treason against the constitution, without violating its letter.

In like manner, had an express power to grant charters been given to congress, it could only have been constitutionally exercised for the support of a free and moderate government, if this was the primary end of ht constitution itself; and its use for the destruction of this end, would have been a real usurpation, by the help of a legal fraud. If this reasoning is true, all aristocracies of interest, military, stock, ministerial, or party, whether created by laws literally constitutional, by a patronage equally warranted, or by the struggles between the ins and outs under less faithful denominations, for the powers and profits of government, being hostile to the true principles of our policy, are really treasonable, and would at once appear to be so, if they were compared with the moral principles by which the constitution was constructed, and the end it had in view. Upon the same ground, the great legislative power bestowed by most of the state constitutions, would not suffice to justify the destruction of the primary end of these constitutions themselves, by any laws, however justifiable by their letter. The state and the general constitutions form but one system of policy. The spirit of this policy, to be only fairly drawn from an inspection of the whole, is adverse to aristocracy in every from, because it is not itself an aristocratical spirit. All laws driving into our policy any portion of this new spirit, will drive out a correspondent portion of the old. But we are not left to infer from the general structure of those instruments from which we deduce our policy, whether its end was aristocratical or not. Titles, exclusive privileges or advantages, so as to comprise completely the ideas of personal and pecuniary aristocracies in all forms, are every where exclaimed against, for the purpose of closing the legislative door against all such modes of destroying our policy. And the success with which these positive inhibitions have been hitherto gotten over, by the constructions of parties of interest in some form, serves to demonstrate both the inefficacy of political law to restrain such parties, and the necessity for ascertaining the principles which constitute a good or a bad government, as a test to which the people may resort for discovering the tendency of civil law.

The laws for making that which was purchased for one shilling worth twenty, and for making these twenty worth thirty or forty, as stock in the bank of the United States; exhibited so dazzling a degree of success in the legislative mode of becoming rich, that all the objections against them as a mode of poisoning our policy, disappeared; and our legislatures suddenly became staples for manufacturing anew the political wares broken to pieces by the revolution. If the English nation, at the accession of William of Orange, had restored to the crown the fraudulent prerogatives, for exercising which Charles bled and James was expelled, our legislatures would have had a precedent for reviving the monarchical policy of welding aristocracies of interest to our new government in a thousand forms, by legal distributions of wealth at the publick expense. Privileges and monopolies, flowing from law, are of the same nature as if they came from prerogative, like the same poison poured from different phials. The English declaration of rights at the revolution, does not more explicitly condemn the oppressions it corrects, than our state constitutions condemn the principle of creating aristocracies by legal privileges. This declaration is the most explicit acquisition obtained by that nation at the expense of much civil war, in favour of civil liberty, but its benefits have been defeated by making the statute book a receptacle for the same frauds which were formerly recorded in the archives of prerogative. An hundred laws to create an hundred aristocracies of interest, if they collect as much money, are the same to a nation, as an hundred of queen Elizabeth’s monopoly grants. These laws require armies and penalties to defend them, live in the United States upon agriculture, and fear a militia.

No government ever commenced its operations with so pliable a people, as that of the United States. Among their most firmly rooted principles, were an aversion for legal privileges, aristocracies of interest and standing armies; and an affection for agriculture, commerce and the militia. By considering the effects of legal patronage upon the first triumvirate, and the effects of withholding it from the second, its force upon national policy, and its capacity to produce one evil as a cause for another, will be seen. A military nation, received from the revolution, has been treated for thirty years with stockjobbing laws; and by throwing away three hundred millions during the same period upon a trifling standing army, without expending a shilling on the militia, an argument has been made against reposing in the latter any future dependence.

The difficulty of proving partial laws to be publick evils, increases as the fact becomes more obvious. As feudal castles and the monkish convents increased, they were thought to yield to nations more defence and more charity, as banks, by an increase of their paper, are said to add to their wealth. The people of England have rejected the defence of the castles, the charity of the convents, and now want bread in the most fruitful of all countries, though tottering under the wealth of paper stock. Such is the effect of enriching capital or cunning by law, of robbing talents and industry of their natural right to divide property, of conveying away national rights by irrepealable laws, and of repealing by laws constitutional principles.

In England the crown lands, though alienated by absolute deeds, have been often resumed, as a publick right, without the power of the king to destroy. Laws for enabling chartered aristocracies of interest to raise a revenue, impair the national ability to defend its liberty; deeds for alienating crown lands, only impaired the ability of a king to maintain his dignity; perhaps his vices. For the first species of right, nations receive nothing; the last was often sold by kings. If the alienation of a fourth of the crown lands was a deduction from the whole, ten millions collected under laws by aristocracies of interest from a national ability to pay forty, must be an equivalent deduction. Can law justly convey publick property to enrich aristocracies of interest or individuals, (publick services being out of the question) though it is forbidden to prerogative, as too fraudulent and oppressive for monarchy? Revenue is more clearly publick property and a publick right, than those crown lands. Unhappily for England, her statesmen discovered, about a century past, that it would sell much better. And after refusing to be defrauded of the crown lands by the term ‘prerogative,’ in an age more enlightened she has been deluded by the terms ‘charter and national credit,’ into sales of her liberty and property, under the usual pretexts of statesmen, but really to enrich parties of interest, to sustain ministries, and to feed vices tenfold in number, and similar in depravity, to those which caused the alienations of crown lands.

The practice of legislation, in imitation of queen Elizabeth, of selling charters of privilege, will suggest some remedy against reviving an old evil in this new mode; and though the same applause awaits the repeal of law charters, which has been paid by all historians to her repeal of privilege charters, (because the receivers or purchasers of national rights, if they are excusable for the attempt to acquire, can never be admitted to have effected the acquisition,) yet her precedent will rob it of the honour of first breaking down the barriers of private avarice, to come at the publick interest.

‘Common consent,’ Aristotle’s definition of law, is only correct in reference to societies actually exercising the right of self government. Force and fraud are in fact more frequently sources of law, than consent. Of this, the argument, that a law should remain against common consent, because it had been enacted by it, is an eminent instance. Does it require a politician as crafty as the English judge who invented the mode of docking entails of land, to teach us how to dock entails of the errours, vices, follies and misfortunes of the dead upon the living? Our common consent is expressed representatively, in a mode of feudal origin, by which dead, often legislates against the will of living consent. If the representative mind consists of three portions, one third can legislate against the will of two thirds; if of two, one moiety legislates against the will of the other. Custom of feudal contrivance, has led us not only into the practice of sustaining law against the consent of two thirds, or a moiety of the legislating mind, but even in the case of the general government, to that of sustaining it against the consent of an entire legislative mind.

The union is compact between two distinct minds, state and popular. The two branches of its legislature, consist of the separate representatives of these two minds. Its health, peace, and perhaps its existence, depends upon the consent of both of these minds to law. If either could retain a law by which it had acquired an unforeseen superiority over the other, the dissatisfaction of the ensnared party would ensue, and the law itself would be a violation of the federal compact. The constitution provides for the consent of both of these minds to law, and a feudal form has introduced a mode of making it, against the consent of one, and sometimes against that of both; so that a portion of our laws are derived neither from consent, force, or fraud, but from the form of stating a question; a source which Aristotle himself has overlooked.

In a state legislature, composed of two branches representing one mind or body politick, a concurrence of some portion of this mind must attend the continuance of every law. In congress, the representatives of the state mind may prevent the repeal of law, which will then continue against the will of the entire popular mind, or against the will of the states, if the repeal is prevented by the popular representatives. Or if the repeal is prevented by the president, the law continues, somewhat equivocally on account of his representative character, against the will of both minds.

A perfect consolidated government guided by the popular mind, or a perfect federal government guided by the will of the states, would be very different from the existing general government. To prevent fraud or accident from destroying by means of law, the equilibrium between these contracting minds, as established by the constitution, both should be free, and neither able to retain an intended or accidental legal advantage over the other. If either of the political contracting parties composing the union, keeps the other subject to a law contrary to its will, it is equivalent to keeping the people of a state subject to a law, although the entire organ of their will should dissent therefrom. And if self preservation requires that this entire popular mind, should be able by its whole representative to repeal a law, the reason is equally cogent to prove, that each of the distinct minds composing the union, should be able to exercise the same power by its similar organ. A power which holds another to law against its will, is dominant, and inequality or war must ensue.

The danger from making law by form, contrary to principle, is greatest to the popular mind. It ought to be less; because that is a natural being having natural rights, whereas the states are artificial beings having artificial rights only. But law is the engine of usurpation upon natural rights, to which the factitious beings called aristocracies, constantly resort. The contest between artificial and natural rights is never equal. One band of these combatants may win rich and substantial booty; the other can win nothing. The reciprocity is as unequal in relation to the chance, as to the stake. The duration and small number of the Senate, affords room for more concert and dexterity, in procuring and sustaining laws favourable to factitious interests, than can be practised by the house of representatives against them.

A strict computation of chances is unnecessary to the argument. It is enough to shew, that out of an unprincipled form, the great social evils of disordering the equilibrium of the general government, and of quartering artificial burdens upon natural industry, may grow; and that these evils are unattended by a chance of equivalent benefits.

As law is the machine used by all factions and aristocracies of interest, for boarding and capturing both social and natural rights, an easy mode of recapture will discourage, whereas a difficult one excites efforts, never fraught with good to human happiness. An advertisement informing a nation, that whatever can be gotten by legal frauds shall be sacred, will tend as much to the encouragement of virtue, as one, that such acquisitions from social rights shall be suddenly reclaimed, would to the encouragement of vice.

Let us view this subject by the light of moral and republican principles. One branch of a legislature is not invested with a power of making law affirmatively, in a society exercising self government, because it cannot express the common consent, on account of representing only a portion of it. If the reason for prohibiting it from making law by saying yes, is good, how can the same reason allow it to make law by saying no? Shall a law continue? Shall a law be repealed? are the same questions in substance; but English monarchy and feudality saw the advantages they would gain over the popular interest by the latter form. It would enable both to retain every encroachment upon popular rights, by the affirmative will of either, under the garb of a negative erroneously supposed to be inefficacious. The pretence, that this negative was necessary in a government of orders, for the preservation of each, is exploded by discovering that such an end would have been much better effected by the principle, that no law should continue without the consent of all. This, in a government composed of three minds or three orders, would have been Aristotle’s ‘common consent.’ And whilst such a principle would have produced the common safety of these distinct political beings, it would have repressed the encroachments of either, by affording a peaceable mode of self security to all, infinitely more effectual for the meditated end, than the civil wars produced by the defectiveness of the remedy resorted to.

Republican and moral principles concur with the language of all our constitutions, in the opinion, that legislatures are divided into several branches, not to enable one only to make law against the will of two others, but to obtain a sounder expression of that common consent, which is the basis of law in a free government. Let us imagine these branches to be three, each consisting of an hundred members; why should one hundred be able to retain law against the will of two? Suppose there had been only one legislative chamber of three hundred members; would the negative of one hundred members on the proposed repeal of a law, have controlled the negative of the two hundred as to its continuance?

By our constitutions a power to legislate is bestowed, generally, upon several legislative branches; but the legislature of Vermont consists of a single chamber. Bestowed either upon several branches or this single chamber, it is an affirmative power. What reason can exist why this affirmative power should in substance be acquired by a moiety or a third of the legislature, when it consists of two or three branches, and be yet incapable of being acquired by a moiety or third of a legislature consisting of a single chamber? Legislative power is bestowed on both in the same terms. Yet in consequence of the feudal form of putting a question, this moiety or third of the legislature constituted in the first mode, makes law by retaining it; whereas no such power can be exercised by the legislature constituted in the second mode, although the powers given to both are precisely the same.

Thus a body of men gains out of a form moulded by itself and subject to its own pleasure, a power to legislate, bestowed neither by the constitution, nor by republican principles, nor even suggested by sound reasoning, in a government planted in a compromise between three orders. When the true question is ‘whether an old law shall continue,’ the collateral question ‘whether a new law shall pass,’ important only from its incidental influence upon the true question, bestows upon a negative vote an affirmative power, or a substantial legislative power, which it could never exercise by voting affirmatively. And a negative upon a bill by one legislative branch, supersedes negatives upon the continuance of a law by two, in consequence of an arbitrary form, in a country whose policy it is, that law should be the genuine result of common consent affirmatively enunciated.

This invention of the English orders, transplanted by blind imitation into our policy, cannot be favourable to this policy, if it was favourable to those orders. But it may be highly favourable to all the legal aristocracies of interest, which may be created to subsist on the common interest, by impeding the recovery of national rights, conveyed in charters or laws fraught with privileges like those of queen Elizabeth. And if we should even so far violate the principles of our policy, as to reduce the people to the station of a democratick, and to exalt all the charter or privileged men, to that of an aristocratick order, yet self preservation would require a negative in each upon law, as the only security against the disorders, invariably produced in the best constructed species of political balance. It is particularly remarkable therefore, under a system of government, acknowledging the sovereignty of the people, and reprobating privileges and exclusive interests, that laws may be retained against the will of this acknowledged sovereignty, after they have been found to operate to a revolutionary extent, in favour of the reprobated principles. If the form, by which an anomaly so egregious has been in grafted upon our policy, without the concurrence of the sovereign we acknowledge, was skilfully contrived to yield advantages to the ennobled English orders, its introduction here is no proof of popular acuteness; and if this device is found there to be favourable to the sprouts from the principle of privilege or exclusive interest, in all the modifications produced by modern manners, its partiality to the family of factitious honour, ought not to excuse its partiality to the family of factitious wealth, in the eyes of a sovereign who must supply it.

The numerical analysis is incompetent to the detection of real legislation, by an unconstitutional authority, under a negative ceremony; but the moral will discern with ease, that it is pregnant with effects founded in bad principles, or at least in principles adverse to those of our policy. It invests minorities and parties of interest, with a formidable power of retaining oppressive or fraudulent laws, which the majority and the publick interest, wish to repeal. It corrupts the outs or opposition, as well as the administrators of the government, because the leaders of both are equally liable to be annexed to some part of interest by wealth or ambition. And it combines together these rivals, for self preservation, so as to resemble an army, which the people could not disband except by its own vote, however its officers may struggle with each other for command and lucrative employments.

Hence all aristocracies of interest contend, that it should be easy to pass laws, when we can only conjecture their consequences; and hard to repeal them, when these consequences are known; and the sovereignty of the people, being persuaded that it is impregnably fortified by a negative against unforeseen evils, and an inability to arrest such as it feels is gradually inclosed within a circle of long and perpetual laws, drawn by this negative magician; and finally becomes a pageant as powerless as the grand Lama; whilst factitious interests become oppressors as tyrannical as his substitutes.

Attempts to reconcile opposite principles are causes of party spirit and revolution. To sanction law by common consent or publick will, is one principle; by the will of a combination among parties of interest, another. If the first principle can only prevent, whilst the other can retain fraudulent laws, it is obvious on which side lies the ability to make encroachments. One is armed with a power strictly defensive, and utterly incapable of conquest; the other with a power of retaining every acquisition it can make, by its frequent and sudden inroads upon the territory of its honest and peaceable neighbour.

The unsettled question in relation to the right of instruction, aggravates the evil of minority legislation, and the moral right of self government is defeated in both cases by form and ceremony. In one, the mode of putting a question confers on minorities a legislative power withheld by the constitution; in the other, the mode of giving the instruction, is also used to confer on the representative a power of legislating contrary to the will of his constituents; and yet both the minorities and the representatives acknowledge a moral obligation to be bound by the wills they respectively defeat. Although a nation holding extensive territory, resorts to district election, as the only possible mode of acquiring the benefits of representation, it cannot exercise, it is said, the inherent right of instructing its agents, in he same practicable mode. Had the division of election, heretofore celebrated among the moral beauties of our policy, been rejected, representation must also have been banished from it. Aggregate instruction is as impracticable as aggregate election. But supposing that both or either could have been effected, it was not desirable, if the principle of division is as salutary in restraining the passions of the multitude as the powers of a government. And although it is alleged that the risk of reelection is a sufficient substitute for the right of instruction, it is an argument so analogous to the notion of thieves, ‘that the risk of the gallows justifies the theft,’ as hardly to deserve refutation upon the still stronger ground, that it would deprive nations of self defence whilst their ruin was effecting, upon a speculation quite useless after it is accomplished. A combination among parties of interest, founded upon the negative mode of legislation, thus absolved from the supervision and restraint of instruction, might continue legal tyranny fraudulently or accidentally introduced, against the will of a nation and of the majority of its representatives, if it possesses no practicable mode of instruction; and its own money would at the same time pay the cost of treason and be used in corrupting election itself.

Liberty, like religion, is lost by planting it in dogma. Roman Catholick christianity was corrupted by heathen ceremonies. The United States have burst through the political superstitions of church and state, and protection and allegiance, into the principle of national right to make and alter national laws; and boast of constitutions calculated to prevent legislatures from introducing legal oppression. Yet we see them suffering law, from a superstitious veneration for a feudal ceremony, highly favourable to the objects of all aristocracies of interest, which will use it to secure the species of property arising from legal frauds, by inculcating an opinion, that it is dangerous to amend constitutions. Such an opinion deserves consideration, as a powerful ally of the two forms, by which the negative of a minority retains obnoxious laws, and the only practicable mode of instruction, is disqualified for restraining perfidious agents.

As the human mind is unable to foresee or to provide against its own devices; a code of political law, is as unable to provide completely for the safety of publick rights, as a code of civil, for private. Perhaps this is making too great a concession to the adversaries of amending constitutions, and that it might with justice be asserted, that it is much more difficult to foresee and restrain the arts of cunning politicians, aided by means infinitely greater, than those of ignorant, disunited individuals.

Suppose a legislature appointed to prepare a code of civil law to be dissolved upon a supposition that the work was perfected. If crimes and evasions, unforeseen and unprovided against, should occur, who would contend that it would ruin the nation, should it appoint another legislature to correct these crimes and evasions? Criminals and sophists. Ought nations to hallow guilt or errour by suffering the evils they cause?

The temptations to violate political law are greater, and the danger or punishment less, than in the case of civil law. In one case, wealth and power are solicitors for crime; in the other, temptation is comparatively trivial, and the spectre of punishment stares it in the face. Will the terror of the gallows seduce men to violate civil law, and the allurement of wealth and power deter them from violating political, so that the stratagems of theft must be eternally met by new remedies, whilst those of avarice and ambition will never require them? If a party should persuade a nation to make no more laws against fraud, would it not be considered as a band of thieves? The illustration of the opinion ‘that it is dangerous to devise new remedies against avarice and ambition,’ by the idea of prohibiting amendments or additions to civil law, is too feeble. Individuals would retain the right and the power of self defence, against injuries from individuals, for which the civil code provided no remedy; but all aristocracies of interest, or combinations of avarice and ambition, work their ends with civil law, against which a nation has no remedy, if amendments or additions to political law should fall into disuse. Wherever the idea of political law exists, frequent charges will be laid before the people against those in power, for violating it; and as these charges will seldom want some foundation, they will sometimes cause the nation to transfer the reins of government to the accusers; but they seldom or never produce any effectual new political law, because the accusers, by acquiring power, are converted into an aristocracy of interest; at least to the extent of the universal desire to hold good offices; and instantly become more inclined to extend this power by the help of the precedents of their predecessors, than to contract it, by declaring these precedents to be unconstitutional or fraudulent.

The policy of the United States is attached to the idea of a government contrived for dispensing benefits equally, (the case of payment for publick services excepted) and adverse to all partial dispensations. In an extensive country, conventions (as we understand the term) are the only guardians of this policy, and civil law is every where the chief or only instrument by which it is destroyed. A rejection of its creator and guardian, and a confidence in its destroyer, would be a revival of the policy by which mankind are universally enslaved.

Legal prescience must for ever remain imperfect, because the evolutions of the human mind can never be limited. How can unchangeable constitutions manage this prolifick being? It leaves every thing behind which does not move with it, except mere matter, and hence laws thus forsaken are called ‘a dead letter.’ When the mind, upon which a constitution was calculated to operate, is gone, though it may exist embalmed in the statute book like magna charta, it exists in the repose and nullity of a mummy. If a moiety of national moral character is changed, then an unchanged constitution would be half dead, and the remainder would be in the state of a living twin, united to a dead one. A constitution cannot be kept alive, or efficient, except by connecting it with a living national character; this is not to be done in any other mode, than that of extending its remedies to new inventions and living abuses, before they gain strength to defy reformation. A neglect of this precaution by political, and a constant use of it, by civil law, is the cause of the difference between the danger of altering these two kinds of law. Attempts to reform abuses of long standing, generally terminate like those of the emperor Pertinax or of the French Jacobins. When civil war is the reformer, it is apt to forget its business, and to create more cause for reformation than it removes. When the funding invention, which has nearly destroyed the political weight of the English nobility, and wholly overwhelmed that of the landed interest, or interest of industry, was in its infancy, this species of revolution, not provided against by magna charta (considering that instrument in the light of a constitution) might have been arrested by an addition to the political code; but now the English nation is forced to live under the oppressions of this modern invention, only to aggravate the evils to be suffered at its death.

The idea ‘that it is wrong to correct wrong,’ is illustrated by the errours it engrafted on Christianity in the church of Rome, and the injury that church thereby sustained. If revelation can be corrupted and its end defeated by civil laws, how can a constitution, contrived by human wisdom, be safe against the ambition and avarice of parties and individuals? It is better illustrated by the usual coincidence, between an enmity to the idea of the perfectibility of man, and an enmity to a removal of constitutional defects. Those who can see the absurdity of the notion of his perfectibility, can discover the perfection of his foresight. However inconsistent such opinions may appear, both are consistent with their motive. Improvement, the best evidence of man’s imperfection, is suppressed, whilst that imperfection is exaggerated, for the purposes of taking advantage of his oversights, and subjecting him to hard government, under pretence of restraining his vicious nature, but really to defend these vicious advantages.

The most immoral motives contend most loudly for the capacity of human nature, to turn out of its hands a perfect moral work. All priesthoods assert the perfection of the dogmas under which they get wealth and honour. Magna charta, that machine for any kind of political work, has been equally praised by a haughty nobility and rebellious mobs; a papistical and a protestant episcopacy; sound and rotten borough representation; annual, triennial and septennial election; a militia yeomanry and a mercenary army; and moderate and stock taxation. Avarice, ambition and self interest, are loud in proclaiming the perfections of the principles of a government, in proportion to their own violation of these principles. A representation in England, designed to shield the people against oppression, has been gradually changed into a representation to shield oppression against the people. Whatever objections, therefore, lie against conventions, they are to be balanced against a tame surrender of the right of making political law, to fraud and corruption. Their certain tyranny is more terrible than this modern experiment, to which we are indebted for all the political good we enjoy.

As good and evil are natural enemies, eternal warfare must exist in the moral world, and the combatant which desists from hostility must be subdued. Good, too often falls into this errour; evil, seldom or never. Hence the first is more liable to lose the fruits of victory. Upon political success, it has hitherto established a wise numerical form of government, as it supposed, formed a didactick lecture for this government to govern itself by, and thrown away its arms. These are seized by the foe, forged into the shape of civil law, and turned against the late victor; and it soon appears that armed sinners are an overmatch for unarmed saints.—The control of nations over governments, can only consist of political law, enforced by good moral principles. A dread of conventions, enables governments to make political law to control nations. They are compelled to do it, if nations will not, to provide for new circumstances. Thus the design of political law is reversed, and its power for preserving a free government, destroyed.

A nation must keep and use an unlimited power over its government, or a government must acquire such a power over a nation. The question in fact lies between the genuine political law of conventions; and the spurious, made by the frauds of parties of interest, aided by the form of repealing civil laws.

It is an old question. Conventions are discredited for the same reasons, which caused kings, courtiers and publick harpies, to discredit parliaments, whilst they checked fraud and oppression. We have seen in Filmer and other court writers, all the arguments against parliaments, or their frequency, now used against conventions. Parliaments were feared, whilst they nurtured liberty and corrected abuses. Their meetings are no longer deprecated, because this fear is removed by corruption. And an apprehension of conventions in the United States is in like manner a testimonial, both of the eminent virtues they have so often displayed, and of the great abuses which have already eluded their authority.

If our allotment of political law to national conventions, and of civil to governments, so essential for the preservation of liberty, cannot be legitimately defeated by an entire government, the enormity, committed by the creature and dependant of a government, must be flagrant. Judicial decisions, in spite of every precaution, might impair and undermine the principles of any constitution, against the will both of the nation and the government, nor is there any sufficient remedy against such an evil, except additional political law. The absence of any check against this mode of changing constitutions, displays the errour of considering election, singly, as a sufficient sponsor for a free government. It is itself the child, the creature and the instrument of political law, amidst whose numerous progeny it occupies but one, though an important station. If self government or political law should yield all its rights and all its power to election, like the parent who transfers his whole estate to a favourite child, it would first become contemptible, and then die forgotten.

An ignorance of conventions and political law, and an unlimited confidence in election, have heretofore defeated the hopes of all the fabricators of free governments. Election, both legislative and executive, has been uniformly corrupted by parties of interest, political or pecuniary. In Rome, and in Italy during the three centuries quoted by Mr. Adams, by patrician orders. In England, first by feudal barons, then by the papal hierarchy, and now by the ministerial and stock parties of interest. These cases shew that aristocracies of interest in all shapes, titled or untitled, can hammer election into a political machine, resembling a curious knife said to have been invented by ingenious thieves, for cutting purses from pockets, without alarming the owners. Whig election passed the septennial law in England, and party aristocracy debauched even Addison into a strenuous vindication of this atrocious usurpation. Elective responsibility passed a law in Virginia in 1779, declaring ‘that it was inconsistent with the principles of civil liberty, and contrary to the rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers, prerogatives or emoluments, and that the General Assembly cannot, at their own will, increase their allowance.’ And near twenty years afterwards, in the true spirit of a party of interest, it added fifty per centum to its own wages. This addition, and the recited law, stand unrepealed to this day, as evidences of the feebleness of constitutional or political law, made by governments; and the inefficacy of election, singly, to preserve the plainest principle of civil liberty. But the election of conventions is a different thing. It looks for different qualities; it is not bribed by hopes of money or office; its offspring cannot bestow either on itself, and its life is too short to admit of corruption, or to reap power and wealth from the political law it enunciates, like a government.

It is universally allowed that forms of government are liable to decay. Without repair, decay terminates in destruction. A constitution must therefore die in the common course of nature, unless it eludes the scythe of death, for ever in the hands of fraud and ambition, by occasional restoratives. However proudly the English form of government at one period reared its head above its rivals, patriots now contemplate it, as travellers do the ruins of Palmyra. Its vital faculty is gone, though an interesting skeleton remains; but its resurrection in its purest form would now cause a degree of terror, something like what is expected at the day of judgement.

Mr. Adams’s theory, and all others adverse to conventions, must establish the constancy of human opinion, or fail. Was this supposed constancy a fiction whilst he was a disciple of Nedham, and does it become a truth, now that he has changed into an enemy to this author? Can that nature be constant, which is to-day ardent for democracy, to-morrow, for monarchy? Is not a capacity for improvement inconsistent with the attribute of constancy? Can unchangeable constitutions, be adapted for a being changeable and corruptible? Would an entire nation, as accomplished as Mr. Adams, require the same form of government as a nation of savages? If the moral nature of man is inconstant, how is this inconstancy to be controlled or nourished, in order to preserve a free government, except by new political law? It is unavoidable. The only question is, whether it shall be enacted openly by conventions, or covertly by governments.

The whole family of aristocracies of interest, deprecate the frequency of conventions, on account of the imperfections of human nature. ‘Man is man,’ exclaim they; slyly insinuating, by the manner of the exclamation, that he is nearly a devil. To keep this devil in order, hierarchy contends that he ought to be cheated by superstition; monarchy, that he ought to be lashed by despotism; aristocracy, that he ought to be pilfered by privileges; and parties of interest, that he is fair game for all fraudulent laws. And forsooth, because man is man. And why not lash these lashers of man themselves into the path of moral rectitude, by political law? A good huntsman lashes his worst dogs into the right trail. Why should some men shrink from the mild discipline of justice, whilst they prescribe to others the cruel severities of fraud and oppression? Oh! say all parties of interest, with great solemnity, the laws for gratifying our avarice and ambition, are necessary to make other men good, or to keep them in order.

Thus thin is the delusion under which tyranny is concealed from the good, and perpetrated by the bad. And as Indians assume a new disguise when their prey detects the old, the centuries employed in emptying pockets under pretence of saving souls, may possibly be repassed in the same business, under the still grosser pretence of filling them. Conventions, alarmed by the first fraud, have expelled priests from legislatures; and legislatures, participating in the second through the channels of avarice or ambition, have colonised them with stockjobbers and legal artificial interests of every description. By political law, a paper instrument, to which no income is attached, is supposed to create a dangerous separate interest; by civil, a paper instrument, bestowing an enormous annual income, is supposed to create none. The pretended enemies of Mr. Adams’s system of political law separate interests warily balanced, throw open all the avenues to power in favour of civil law separate interests without check, and furnished with the artillery which has demolished even his best conceived balances. A pecuniary separate interest, unchecked by some coequal power to which its growth might be dangerous, constitutes the most oppressive conceivable species of government, because it collects private wealth for itself from the people by its own laws; and it will loudly deprecate conventions, because the abuse admits of no other remedy.

Such arguments as assail conventions, have been suggested by the same motives, against every moral improvement, to which the present age is indebted for all the happiness it enjoys. Christianity was dangerous in the opinion of pagan priests. Galileo’s speculations were dangerous in the opinion of the Pope. Toleration is dangerous in the opinion of established churches; and conventions are dangerous in the opinion of every separate interest. Yet Christianity prevailed; Galileo’s principles triumphed; toleration exploded persecution; and conventions bestowed upon the United States the best practical government which has hitherto appeared.

All craftsmen, or parties of interest, exclaim ‘that human nature is too imperfect to avail itself of the principles of political morality.’ Ought idolatry to have defeated christianity by the same argument; or are the principles of christianity less perfect than those of political morality? Or is human nature capable of being benefited by good religious, but not by good political principles? Let prejudice, zeal and interest jointly answer these questions. There is no opinion more injurious to mankind, than ‘that virtuous nations only can maintain a free government.’ It enlists on the side of despotism all persons of a misanthropick turn of mind, by a computation of the human character, founded in a casual complexion, and liable to be false; and which would not justify the inference, if it was true. It enlists industrious men under the same banner, by terrifying them with the consequences of indulging vicious beings with liberty. It cuts off the hope of improving the morals of mankind, by excluding the most successful preceptor. And it excludes the remedy against abuses, by asserting that it must fail, if the nation is not virtuous. Without losing time in shewing, that the difficulty of ascertaining the prevalence of national virtue or vice; and whether it is natural or artificial; and the want of a standard for fixing the quantity able to maintain good, or requiring bad government, leaves the position in a state of generality, incapable of being proved or disproved; I shall upon other grounds advert again to this doctrine, on account of its special hostility to the conventional mode of preserving good political principles.

Which is the best defender of human rights, virtue or wisdom? Cannot an individual maintain his rights unless he is virtuous? Behold the virtuous fool and the wise knave. If a philosopher should run through the world exclaiming to every vicious man he met, ’sir, you cannot be free, because you are vicious; the best thing you can do is to become my slave,’ would he make one proselyte? Would he be thought a maniack or an apostle? Why has the same egregious absurdity, preached by politicians, succeeded? Simply because it was favourable to abuses, frauds, parties of interest, and tyranny in every form. All associations, chartered and unchartered for trade, city government, banking, and speculations of every kind, earnestly preach and sedulously in practice, contemn this doctrine. They rely upon wisdom and republican principles for the security of their own rights, and deny the efficacy of the same security in respect to national rights, because of a defect of virtue in a nation, of which they compose a portion, not more virtuous than the rest. They are perpetually calling partnership and separate interest conventions, in order to make use of their wisdom, to defend legal or chartered privileges, to advance private interest, and to annoy the publick; but they will not allow nations to use their wisdom for self defence in the same mode, because they want virtue. If wisdom and strength enables individuals to maintain their rights, why may not social rights be maintained by the same agents? Is it virtue which enables one nation to conquer another, or a treacherous faction to enslave their own country? Virtue could not protect the Roman Senators against the swords of the Gauls, and vice can see that eleven men can control the tyranny of one. If minorities often make themselves tyrants by wisdom, why may not nations preserve their liberty by it? Why do all minor societies find wisdom and republican principles, the best securities against their own vices, if they are no check upon national vices? Why are conventions useful to them, and pernicious to nations? And why are additional conventional laws necessary for the safety of sub-societies, but not for national safety? The solution of these inconsistencies is short and plain. Conventions, wisdom, and republican principles, are the best controllers of vice hitherto discovered. All sub-societies, therefore, use them to restrain the vices of their own members. But they are not willing that nations should use them, for the same reason by which they are induced to do it. Being themselves the least virtuous members of every nation, they are unwilling to suffer the control they carefully inflict. To this cunning and self interest mankind are indebted for the doctrine, ‘that they cannot be free unless they are virtuous.’ Whereas the fact is, that virtue may be more safely dispensed with in a national convention, than in an inferior association, or in an individual; because wisdom in the first case is exposed to no temptation to vice, as it can discern no object to defraud or oppress; whereas such objects, in abundance, assault the wisdom of exclusive interests. Wisdom is of no use without will, and national will with us can only be expressed by conventions, or additional political law. By withholding from a nation the use both of its wisdom and will, it must become a statue, and some aristocracy of interest, a Prometheus, who will animate it with such civil law as he pleases, but never inspire it with celestial fire.

Conventions are the remedy against the errour of trusting to some dogma for a free government, and against the danger of despair, whenever this dogma is exploded. That liberty cannot exist without virtue, that it depends upon education, and that it is graduated by skilfully balancing the members of the numerical analysis, are among the most specious and the most pernicious. By making virtue a necessary antecedent to a free government, their natural moral order is transposed, and the prospect for both is diminished. Those moral principles upon which every fair association, political or private, must be built, constitute in their operation a school for virtue, by the restraints or responsibilities of which justice to associates is enforced, whilst morality is impressed by habit. No opinion could be inculcated more fatal to a science, than that it must precede instruction. The second dogma is more dangerous, as containing a greater portion of truth; because education is undoubtedly one of the sources of wisdom, although it might be fatal to a nation, to mistake it for wisdom itself. Comparisons between the Augustan, and some early age of the Roman Commonwealth; between some Gothick age, and that of Lewis the 14th of France; between England and France; and between Scotland and the United States; would demonstrate that free government was not graduated by education. The refutation of the third, as infinitely the most dangerous, has been the chief object of these essays; for although Mr. Adams himself has proved it to have been the most unfortunate of all in practice, he has persuaded himself that it is the most perfect in theory.

Mr. Godwin has said, ‘that a scheme of national education is the most formidable and profound contrivance for despotism that imagination can suggest;’∗ and hence concludes that education ought to be left to itself. The philosophick, as well as the religious fanatick, must be detected, to come at practical truth. If education is this powerful instrument, liberty, by foregoing its use, would experience the same fate, as she would suffer from surrendering to despotism the exclusive use of fire arms. And as these, however dangerous to liberty, united with the invention of standing armies, may be made subservient to her safety by a good militia system, so a good system of education, would send large contributions into that reservoir of materials, of which knowledge is compounded. The superstitious mode of trial by battle, would have been rendered too ridiculous even for its Gothick æra, by allowing to one, and withholding from the other combatant, the most formidable weapon which imagination could suggest. Neither philosophers nor priests will ever be able so far to change the materials of human nature, as to invest one with the powers of all. It is difficult to form education into a despot by precept; for however undisciplined the militia of man’s other powers may be, education will constantly lean towards their regulation. But if a fraudulent system of education and a mercenary army, can bestow long life upon a tyrannical form of government, it is probable that a just system of education and a sound militia, would perpetuate a free one. Why should auxiliaries so powerful to a bad cause, be renounced by a good one? Wisdom will work for vice as well as for virtue. The rulers of the civilized world at this time, possess a far greater portion of knowledge, than the individuals composing a nation could ever acquire; some displaying its effects under the tutelage of political law, and others its effects under no such restraint. And a comparison between these effects is a decisive proof, both that Mr. Godwin’s idea of extracting from wisdom unrestrained by political law a free government, is chimerical; and also that this restraint, imposed by national wisdom, causes the wisdom of governours to be infinitely more subservient to publick good. The facts on both sides go to demonstrate the impossibility of national freedom, if nations, by losing the custom of enacting and enforcing political law, should suffer this right to be gradually usurped by their governments. The doctrine, ‘that school masters can keep us out of tyranny, so as to enable nations to dispense with political law,’ is a dependence like that upon priests, to keep us out of purgatory. But if a mode of education, like a standing army, can change the nature of a government, and constitute the most formidable contrivance for despotism, a nation, to preserve its liberty, must have wisdom enough to influence this moral mode of destroying it, just as it must control a standing army, for the same purpose, by the superior physical force of a militia. Education must be supervised by the same vigilant national wisdom necessary to defend liberty against whatever can be used to destroy it; and the same care must be taken to prevent it from being converted into an instrument by a sect, religious, political or chartered, as to withhold from avarice and ambition the use of a standing army. The benefits derived by mankind from academical institutions, though fettered or corrupted by despotism or superstition, are a pledge for their effect when nurtured by the principles of a free government. How great is our debt to those of Athens only, during a short period! The objection to an expense, of which a proportion falls on those who can receive no part of the education, would be stronger against publick taxes to support government, because many more people participate in the good effects of academical institutions, than in the salaries or benefits of publick offices. An augmentation of knowledge always dispenses some good to the whole nation, whereas the majority frequently suffers much evil from certain modes of civil government. The access to wealth and power is widened by education, and contracted by its absence, because genius, however poor, will acquire knowledge if it is introduced into a country, just as the art of weaving has spread from a few looms throughout the civilized world. A publick patronage of a few good colleges, is therefore a patronage of genius; and as the chance for it is equal among all, the poor, from their superiority of number, will draw most prizes in the lottery of knowledge, established by means of colleges, chiefly supported by the rich. It is only necessary to chasten academical institutions by the same good moral principles necessary to make a good government. To establish responsibility; to make income depend on merit; and to banish offices for life, sinecure salaries, and idle, vicious, or incompetent functionaries.

The difference between knowledge and education is certainly considerable. We often find most liberty attached to the inferior stock of education, but we should be able to discern a more equal distribution of knowledge attached to it. Without attempting to reconcile theory and fact in such cases, it is sufficient to observe, that civil laws contrived to dispense knowledge to parties, sects, or exclusive interests of any kind, and ignorance to the majority, are precisely of the same nature with those contrived to dispense wealth and poverty in the same way. A wise clergy and an ignorant laity, or a wise stock interest and an ignorant agricultural interest, produce the same consequences as any other rich and poor orders or interests. Either molten or printed images can forge and fix fetters. Hence it behoves a nation having wisdom enough to be free, to supervise the conduct of its government by conventions, and to prevent a fraudulent management of education, as well as of property, by civil laws, for the purposes of fostering parties of interest, defending fraud, and maintaining despotism.

In the United States, agriculture covers the interest of a vast majority. Whatever civil laws pass for distributing knowledge or wealth, operate against her; because being the mother which suckles all other interests, her own children cannot suckle her. Our landed interest corresponds with the tenantry of England, being composed, generally, of cultivators. The English landlords are satisfied with a policy which distributes wealth and knowledge by civil laws, because they are themselves the chief objects of its fraudulent bounty, and their tenants the chief assignees of ignorance and poverty. The gross errour of the American agricultural interest, in imagining itself to bear a resemblance to the English landlord interest, may beguile it into the English system of legislating ways and means for extracting wealth from labour, and of course leaving it ignorance; but if it should, our cultivators will voluntarily inflict on themselves the evils, under which the English tenantry unwillingly groan. Laws for dividing landed, and accumulating legal wealth, will also convey mean talents to real, and splendid to artificial property; and the effects of moral superiority inevitably follow. Even laws with the specious object of diffusing education, may be contrived to distribute knowledge and ignorance, so as to establish the power of legal aristocracies of interest. It is easy to educate agriculture and labour at their own expense, sufficiently for submission, but insufficiently to balance or control the high moral accomplishments bestowed upon aristocracies of interest, as an appurtenance of the wealth transferred to them from agriculture and labour by fraudulent laws. Projects of this kind will be used to conceal from the mass of a nation, the undeniable truth, that no such experiments can save its liberty, whilst laws exist for creating factitious wealth; because all parties will use such a legislative power to produce great inequalities of wealth, and this wealth will carry with it those talents which guide all civilized governments, though all the rest of the nation should receive ordinary educations.

The idea of equalising knowledge, is as impracticable as that of equalising property by agrarian laws. Both are extremities of political fancy. But the opposite extremities are unfortunately practicable. Knowledge, and property or wealth, may be rendered extremely unequal by fraudulent laws. And it often happens, that the destroyers of primogeniture, for the sake of dividing lands, are so inconsistent, as to accumulate wealth by laws founded in the contrary principle. A power to distribute knowledge or wealth, is a power to distribute both. One is annexed to the other. A free government cannot subsist with either power, because selfishness invariably patronises itself and its adherents, and allots ignorance and poverty to the mass of people, always necessary to be sacrificed to the legal opulence of a few. If knowledge and wealth are left to be distributed by industry, a beneficial excitement of effort, and a division sufficient to preserve a free government, are produced. By dividing lands, and creating stock of various kinds, drawing twenty millions a year from labour, a double operation to great extent is produced, of enriching and enlightening factitious interests, and of impoverishing the landed and working interests of the United States, both as to their minds and estates. This impoverishment of mind will endow the legal interests with the offices of government, convert representation into a mantle for fraud, and our government into an elective aristocracy. Had these twenty millions remained in the hands of agriculture and labour, they could have annually purchased knowledge to that amount; and the difference between this annual supply, and its transference by law from them to factitious interests, constitutes the pure principle of aristocracy. Common good, is the best principle for industry and majority; partial, for fraud and minority. If the first associates assign their wealth and knowledge to their natural enemies, as they have generally done, the war will terminate in the old way. By cutting up the landed interest into little farms, the interest of industry and majority will gradually lose that dissemination of moral talents, necessary to restrain the frauds of the whole family of legal, exclusive or aristocratical interests. The interest of the majority must perish, unless a sound mind is lodged somewhere within it. To cheat it of the share of knowledge by which it may maintain its rights, under pretence of making it all mind, would be like persuading the other members to cut off the head, and to depend for their future safety on a new contrivance for making all of them heads. Such is the reimbursement promised by a system of general education, for the removal of wealth and knowledge from agriculture and industry to legal interests. It resembles the device of sumptuary laws to hide the cause of luxury. Remove the cause, and the luxury ceases. Remove the frauds which make a majority poor and ignorant, by making a minority rich and wise, and these evils also cease. Sumptuary laws cannot prevent luxury, if its cause remains; nor can the poverty and ignorance of the mass of a nation be removed by any system of education, if laws exist for enriching a minority. The laws enabling individuals to amass great wealth by means of the spoils of conquest, enslaved Rome. Laws for enriching parties of interest, by tythes, offices, sinecures and stock, enslave Europe. A division of wealth, by industry and talents, never enslaved any nation. Some idea of this intelligence from experience, seems by their constant hatred of heavy taxation, to have been planted in the minds of the people, of which ignorance is often cheated by the arts of fraud. Sometimes by charges of sordid parsimony, advanced by avaricious parties of interest; sometimes by means too indirect and intricate to be unravelled by instinct; and at last by pretences of associating it in a plot for plundering and enslaving posterity.

Inferior agents in all wicked plots suffer punishment in this world, whilst their leaders often avoid it until the next. It seems as if these leaders hoped to expiate their own crimes by chastising their instruments, without suspecting that they may be reserved for severer justice. Thus parties of interest universally treat the mass of nations, for assisting them in their conspiracy against posterity. They reap the whole benefit of the fraud, and use it to corrupt and change the existing government. If, however, the fraud of transmitting debt, taxes and tyranny, to posterity, was assented to by every individual of an existing age, to gratify its follies or enrich its parties of interest, the assenting age itself would still be a party of interest or an aristocracy, in relation to its successors. It endeavours to enrich itself or pay its debts at the expense of a vast majority, for which it legislates without any authority. It violates its own principles of representation and taxation far more tyrannically, than was attempted by England against these states. The taxes imposed are infinitely heavier. Not a single cord of sympathy draws commiseration towards the unborn. Their money is spent without a possibility of the reimbursement, whatever it amounts to, drawn by cunning from the vices created by fraud and oppression. The parties of interest who receive the tax by anticipation, avoid the small check of contributing towards it. And the oppressor having enjoyed his spoil, has gotten out of reach, before the oppressed acquires a power of resistance.

The celebrated idea, ‘that the people are their own worst enemies,’ expressed by Ovid in his assumption of Romulus, and alluded to by Garth in his preface to a translation of the author, in the observation, ‘that after a people are preserved from the enemy, the next care should be to preserve them from themselves,’ is adverse to the argument against a system of legislation in favour of parties of interest or aristocracy. Romulus himself was the author of the patrician party of interest at Rome, which murdered him, appropriated to themselves the publick wealth, oppressed the people, and drove them finally under the dominion of one tyrant, as a refuge from many. The Spartans never thought of these saviours against themselves. They were a democracy of masters over a democracy of slaves. These masters remained long free, because they trusted to themselves for safety. Nations who receive safety, receive at the same time a master, whether that safety is bestowed by law or by force. If by law, it must be the donation of some party of interest, and as it is of the essence of all such, to elevate without merit, and to enrich without industry, the genuine cements of honest society, and the motives inciting men to good and useful actions, must all be destroyed. By seeking for honour and wealth in title and law, men scatter curses. Left to feed their passions by the help of merit and industry, they scatter blessings.

Mercier, a French political writer, ascribes our constitutions to the wisdom of European philosophers, and foresees our ruin from mercantile guile. If the assertion is true, our gratitude for a policy, which that quarter of the earth has been unable to equal, ought to be measured by their envy; and when this envy shall cease, no reason for our gratitude will exist. His apprehension glances at its termination, but he has contracted a great idea, after he had almost compassed it, down to nothing, by the epithet ‘mercantile.’ Knowing that guile and venality led the way to despotism, but seeing none established by our political laws, he turned his eye towards the mercantile, and overlooked the capacity of civil law to issue it in copious streams. The mercantile, concealed like guilt in the breast of an individual, bears no resemblance to the political, published like justice in the face of the statute book. One never destroyed a free government; the other never failed to do it, unless the nation destroyed that. When the English clergy owned 28,115 knights’ fees out of 60,215 into which the whole kingdom was divided, the guile and venality of this party of interest, made it the pest and the tyrant of the country for five centuries. If our exports amount to $40,000,000, twenty of which are expended in taxes and the sustenance of labour, and the banks have already gotten a moiety of the remaining twenty, they have outstript the monks in availing themselves of the civil law mode of growing rich. The clerical party of interest contended successfully for a long time, that to tax it was wicked; the banking has successfully advanced the same doctrine. The clerical intrigued with kings and beneficed the sons of nobles, to obtain the support of the government; the banking bribes governments, and infuses stock into agriculture. The clerical pretended to bestow heaven on the laity; and the banking pretends to bestow wealth on labour.

The republican principle of general or publick interest, cannot be successfully assailed by the mercantile guile and venality of individuals. But the guile and venality emitted by civil law in the shape of a party of interest, endeavours by every expedient, to cut up the general interest, for the sake of its own safety or aggrandizement; and soars above little individual frauds in the sunshine of legislative favour. To these parties of interest nations owe the exclamations against a militia, and the commendations of standing armies. The conquest of the Roman empire; the emancipations of Holland and the United States; the resistance of France against a combination of nearly all Europe, aided by her deserted standing army; the resistance of Spain, defrauded of her standing army, against France; and the consequences of a single defeat to countries confiding in standing armies, can never plead successfully for a militia, where the system of rearing separate interests prevails; because a militia cannot exist where its natural ally (the general interest) has been massacred up by civil law, into a herd of parties of interest, actuated by that species of guile and venality by which free governments are destroyed. If men could be made wise as well as knavish, by self interest, the majority would see the same principle in the doctrines of saving nations against themselves, of defending them by standing armies, and of governing them by a knot of parties of interest, intertwined like a knot of serpents for self gratification. A standing army being itself a legislative party of interest, becomes naturally the associate and ally of a policy compounded of such parties. If a militia cannot defend a country, the inhabitants cannot long exercise the right of self government. If it cannot repel invasion, it cannot prevent the usurpation of an army which can. A government at the head of an army able to control the people, will never regard election but as another instrument to rivet oppression.

The events of the revolutionary war are misrepresented by the combination of parties of interest (at the head of which, it is to be remembered, that the existing government by which they are created or sustained, is always stationed) as sufficient to explode a reliance upon a militia. During that war they performed many gallant actions, often gained victories unconnected with regulars, and submitted at least to equal hardships, without bounties, without clothing, without half pay, without donations of land, and without mutiny. A theory of what might have been achieved by a great regular army, is arrayed against a mass of actual services rendered by the militia. But it ought never to be forgotten, that the maladies which swept away the first small army, would have reached a great one; that the inability to arm, clothe, feed and physick it, would not have been removed by its increase; that the small army hardly suffered those unavoidable privations, which a large one would have redressed in its own way; and that this experiment of a militia, was made by a government without resources, without military knowledge, unestablished, and divided into thirteen independent sections.

No department of the legislative policy of the states, separately or united, seems to me to be more defective, than the management of the militia; which, like a government, is capable of being corrupted or destroyed by bad principles. The militia of Virginia, for instance, is commanded by officers holding commissions by a more independent tenure than the judges; namely, during good behaviour, of which they are themselves to decide; and these officers are almost entirely promoted by rank. Responsibility is lost or enfeebled. Successional power, as poisonous to our policy as hereditary, supersedes the qualities fit for office; and patrician notions are infused into those who ought to be the vindicators of equal rights. If civil offices were made successional, if they were held for life, and if the incumbents were only responsible to their own corps, it would beget a political exhibition resembling a militia, moulded by the same principles.

The commendations bestowed by foreigners upon our form of government, are suggested by an inspection of our political laws and the principles they inculcate upon civil legislation. It is probable that a discouragement and neglect of agriculture and the militia, was never suggested by this inspection to the most capricious imagination; and yet it is equally probable, that our legislatures have devoted a thousand fold more time to the single subject of banking, than to both. The maxim, ‘that nations cannot be free without a sound militia,’ is reiterated by our constitutions; and our legislatures bestow penalties and contempt on this mode of defence associated with the general interest; and pay, clothes, rations, bounties and honour, on a mode of defence associated by its moral nature with legal beings of the same moral nature. Fraud and folly then express astonishment at beholding a good thing uncultivated, less thrifty than a bad one carefully nurtured. Suppose the comparison had been, between a regular army nursed by privations, and a militia fed by money. Let an honest inquirer after truth, ascertain the amount spent on the perishing modes of defence by parties of exclusive interest, military and naval, since the revolution, and estimate the impetus which the same sum judiciously applied, would have communicated to the general and immortal mode of defence.

Perhaps the principles and doctrines of England, for many centuries, in favour of liberty, so incomprehensible to the rest of Europe, and so useful to these United States, arose from her long disuse of standing armies, and her moderate recourse to them, after the rest of Europe had been made subservient to the chiefs of these parties of interest. Providence seems to have raised up another nation in the United States, better isolated against the pretexts under which the military separate interest poison is administered. Oceans in front and rear, on one flank a barren, and on the other an enervating climate, with a vast expanse of territory within these natural circumvallations, ought to enable them forever to reject the bitter potion, so long resisted by their ancestors within the shadow of powerful rivals. The legislative neglect of agriculture and the militia, and cultivation of parties of interest to enrich and for defence, have been selected to shew the necessity of distinguishing between good and bad principles, for the purpose of preserving the loyalty of legislation to the political laws, enunciated by the sovereign national authority.

Rely not upon oaths for this loyalty. They were formerly used to hide treachery by kings themselves, who swore to defend liberty, fulfil treaties, and observe charters. Oaths never stop the current of consequences flowing from laws inconsistent with the principles of constitutions. Prospective oaths may possibly be presumptuous and impious, in promising mental stability, when the Deity has not implanted that quality in man. Being taken according to law, and broken according to nature, the reverence which would have sanctified the obligation, had it been limited to past occurrences, is weakened. As a security for the observance of political law, the sovereign power of construction to heal the most tender consciences, renders them quite insignificant. A thousand instances of this species of party medical skill have occurred. ‘The constitution, the laws of the United States, and treaties, shall be the supreme law of the land.’ Construction can condemn the second number of this sentence into an allegiance to the third, and open the way for a subserviency of the first to the two last. It can substitute for the responsibility of the house of representatives to the people, a submission to the President and Senate. It can require law unsuggested by discretion, and unexamined by the understanding. And it can invest the President and Senate, having the concurrence of the judges, with a power to impose taxes, incur debts, dismember the territory, and legislate almost without limitation. Let us rather then establish principles, than trust to oaths, for the maintenance of our policy.

Patronage must be recorded among the modes of destroying forms of government; or political, by civil law. It can seduce the servants of God to advocate fraud and superstition. It excites talents against truth. It corrupts by hope, by fruition, and by disappointment. It teases and deceives the people by its contentions for office, into a fatal indifference towards the measures of a government. And its poisonous influence reaches electors, as well as representatives, by a thousand imperceptible channels. A balance of good and evil ought to be struck between patronage, exercised by one man or divided among a multitude. In the first shape, it is able to produce a monarchy in disguise; in the second, its factions are perishing. Exercised by various transitory bodies of men, it produces no fraudulent party combinations, because such bodies escape both from vice and rancour, as a cloud escapes from view; and the happy divisions of our government, bestow an opportunity to disperse a tumour, constituting a species of accumulation of power, of the most acrid nature, in relation to our principle of division, in all its applications. Accumulated, patronage becomes the real legislator of a nation, under whatever forms laws are constructed; and secrecy, both legislative and executive, draws over its operations a dark cloud, through which a combination of intellect and opportunity only can penetrate. Pretexts for this secrecy can never be wanting, when philosophers have represented the principle as a valuable attribute of monarchy, by inventing a theory of its usefulness, without contemplating the real objects exposed to view, whenever time has torn off the veil, under which kings, priests and statesmen, modestly pretend to conceal their virtues. Are these gentlemen less inclined to boast without merit, or to disclose their virtues, than others, because they can pay flatterers without disgrace, and repel contempt by power? If so, there is some reason for bestowing upon their humility that confidence, which consigns the fate of nations to the exclusive custody of governments, and subverts the entire political structure erected upon the principle of self government, and the sovereignty of the people. Secrecy is good for conquest, say its advocates. Let nations who wish to be free, remember that freedom cannot exist, except by controlling the conquests of their own governments at home. Patronage and secrecy united, are daily carrying some of their defences. Conquest abroad is rare, and no compensation for conquest at home. Algernon Sydney (an author, who stands as a witness, that talents and truth may be outfaced by ignorance and errour) has proved that the ardour of conviction, is preferable even in war, to the apathy of secrecy. If this ardour is too strong for discipline, where discipline is strongest, what will be the success of a free form of government, capable of being sustained only by the convictions of reason, if it is confided to the same species of apathy? Conviction built upon secrecy, is religion built upon mystery. Is religion improved or injured, by being purged of this feculency? Will that which purifies religion, corrupt a government? A system of legislation in favour of parties of exclusive interest, influenced by patronage and shrouded in secrecy, constitutes a body politick of thorough putrefaction in the eyes even of an ordinary republican anatomist. He will easily discern, that though a government founded upon a publick opinion, which opinion was to be founded upon secrecy, might rival the Indian cosmography, it could never know the principles on which it stood.

Governments, like persons or poems, ought to sustain a consistent character. Had Homer made his heroes whine in elegy, or chat in pastoral, he never would have been called the prince of poets. If antiquity had transmitted to us two fabulous poems; one, of a king, nobility and house of commons, contending for mastery during several centuries; the other, of a nation which had sustained the calamities of a long war to establish a republican government; both concluding in the catastrophe of swallowing up the long adjusting balances, and the late established republicanism, with the greedy throats of paper stock and parties of interest; would they not have been considered as monstrous violations of probability, well depicted in the first five lines of Horace’s art of poetry? Still, either monster, like the God Fo, would be celebrated by its priesthood. A knowledge of principles is as indispensable to a nation, to enable it to sustain a free government, as of plants to a horticulturist. It is as absurd to ingraft aristocratical or monarchical buds upon a republican root, as a brier upon an oak. Those who pretend to this art, design gradually to eradicate the oak, and to plant the brier where it stood. By being able to class principles, we shall easily class laws. Aristocracy, by playing the Harlequin, by Protean transformations, and by its painted draperies, will no longer be able to perplex and deceive mankind. Through the robes of superstition, noble orders, paper stock, and of all the various parties of interest, the same principle will be seen, and whenever it changes its dress, every body will know it to be a new attempt to conceal its deformity.

But our efforts to understand principles, are obstructed by that toad accoucheur, construction, which pretends to draw out of the womb of the term ‘republick,’ every conceivable form of government, except the solitary despotism of one man; and to require her maternal tenderness and blind affection for the whole monstrous progeny. This skilful operator boasts of the still rarer art of making two beings out of one foetus, in the case of the English government; and of proving that though this republick and monarchy, this piece of hermaphrodite political mechanism, has been born again and again, according to the motley humours of barons, priests, kings, conquerors, mobs and stockjobbers, it has yet the wonderful property of being always the same, or at least, whatever our operator pleases to make of it. By travelling over history, and collecting the fraudulent or erroneous applications of the word republican to reduce it to an equivalency with the word ‘government,’ it is made like the term ‘man,’ to embrace all moral qualities, good and evil; and liberty is deprived even of her name. This device can only be eluded by a moral analysis. It will enable us to know good or bad governments, or good or bad laws, in the mode by which we distinguish between good or bad men. Its basis, is a specification of qualities, illustrated by those of our policy; as for instance, ‘the sovereignty of the people, an equality of rights, an abhorrence of privileges and sinecures, free discussion, a preference of a militia to mercenary armies, a protection and not a distribution of property by law, an enmity to all parties of interest, and many others;’ and not political names, always expounded by interest and party, to mean any thing or nothing. Guelph and Ghibeline, Whig and Tory, Federal and Republican, have all been equally capable of no meaning or any meaning; nor was the name Praise God Barbone, any proof of the piety of its owner. But though the names of men or of parties, are a frivolous definition of such human qualities as are liable to fluctuation, yet it is easy to invent or agree upon some epithet, denoting a definite collection of moral principles, applicable to the formation of a government, having previously arranged such as are contrary to each other in distinct divisions. Freedom of speech or its suppression, responsibility or exemption from control, division of power or its accumulation, defence by a militia or by a standing army, division of property by individual exertions or by fraudulent laws, are instances of the facility with which an arrangement might be made, exhibiting distinct classes of moral principles, capable of receiving a name, or of being used to chasten governments or legislation, without being comprised by any epithetical definition. Either the word ‘republican,’ may be used to convey an idea of the class of good political principles, or if it be true as is often contended, that like the names Peter and Judas, applied to men, and whig, tory, republican and federal, applied to parties, it can convey no idea of principles, then the class of good principles may be constituted into a band of sentinels, each ready to alarm nations whenever an inroad is made by fraud, avarice, or ambition, upon the quarter where he is stationed. It is true that the names of governments are as unable to convey an idea of the qualities of governours, as are the names of men or of parties of theirs, because men are still the subject named, and therefore, unless we abstract the name of our form of government, from those who may administer it, and consider it as implying a fixed class of principles, for the express purpose of controlling the fluctuating and selfish nature of these administrators, its freedom cannot continue. By relying upon the undulating temper of undisciplined man for the administration of a government, we are brought back to the most artless and savage state of society which can be conceived, and lose all those principles for regulating human nature, to which the world is indebted for its whole progress from a state of barbarity. Government, freed from moral restraints, is the result of the passions of the men who govern. Men, combined in self constituted parties, such as whig and tory, republican and federal, not being exposed to any moral restraints, similar to the political laws of constitutions for disciplining governours, act as governours would do unrestrained by political law. If governours thus unrestrained, would be guided by selfishness, avarice and ambition, all such political parties must by the laws of nature follow the same guides. If governours, at liberty to follow their own passions, would not be constituted into a genuine republick by assuming that name, neither can a name infuse republican principles into unrestrained parties of interest, of ins and outs, struggling for wealth and power. The world has never seen such parties guided by the principles which secure a free government, because they are not tied to loyalty by the ligament of political law in their party proceedings, nor would it have ever seen a republican government, if all governours had been equally at liberty to pursue the dictates of self interest or passion. Nominal republicanism, being spurious and fraudulent, takes every thing it gains from that which is real and true. The penalties paid by nations for an opinion, that good names implied good principles, caused the United States to resort to the expedient of controlling men by political law, to which they have already been indebted for a wonderful number of good governours, whilst few or none have ever been made, even by the good names judge, bishop or nobleman. Whenever they are deluded of this expedient by the artifice of adapting names to a temporary prejudice, they will pay the same penalties paid by other nations for the same absurd idolatry. Government has been called a necessary evil, on account of the propensity of governours to sacrifice the publick good to their own selfishness. Why should nations invent a whole tribe of parties of interest, which are not necessary evils, when it is so difficult to manage one? Their unrestrained vices replenish governours with the b

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Section the Ninth: THE LEGAL POLICY OF THE UNITED STATES - John Taylor, An Inquiry into the Principles and Policy of the Government of the United States [1814]

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Section the Ninth

THE LEGAL POLICY OF THE UNITED STATES