SECTION I. The Subject proposed.

A THEORY has been adopted, by some European Philosophers, ^* of no small note, that the first rude state of society, which, among civilized nations, is usually denominated the savage state, is the only natural state of man; that, in this state alone, he is capable of attaining the achme of perfection in virtue and happiness. They have supposed, that, what are generally called social improvements, serve only to deprave, and either inevitably generate a wicked dis­position in man, or, at least, invigorate an original propensity to vice, which lay dor­mant, in what they so emphatically stile, the state of nature. They have further suppos­ed, that from this wicked disposition, thus be­come predominant, and from various clash­ing interests, unknown in the state of nature, arises a war of all against all; that civil laws and government are an invention of man, to restrain these evils. Hence they derive the necessity of government, ultimately, from the original or adventitious wickedness of men.

[Page 14]Others have espoused an opinion, that true virtue, genuine benevolence, in man, would, in every stage of society, supersede the necessity of municipal laws, and civil subordination. With the former, they hold, that wickedness, alone, has imposed the necessity of civil governments. Both appear to imagine, that civil polity is not to be derived from the nature of man; but that it is a system of rules, contrived to meet his wicked disposition, and to restrain the violence of individuals, by the vio­lence of laws. According to them, it was not so much designed, by the author of our nature, to lead men to happiness, in society, as to prevent the misery, which they are ever ready to inflict on each other; in short, that man has a necessity for civil government, but not an adaptation of his nature to that state.

Some political writers, of great eminence, ^* have admitted, that man was originally designed for civil government, and that he is under a certain necessity of nature to adopt it. At the same time, they have maintained, that on entering into civil society, he, of necessity, gives up a certain share of his natural liberty, of his natural rights. By these expressions of natural liberty, and natural rights, are to be under­stood [Page 15] that liberty, and those rights, to which man is entitled by the laws of his nature, as constituted by the Author of his being. This implies, that man, by the laws of his nature, is but partially sitted for society. Impelled, however, to adopt that state, from a necessity, which is admitted to arise from some part of his nature, he sacrifices a part of his natural rights, to secure the re­mainder, and even to acquire those, to which, by the laws of his nature, he was not originally entitled.

I propose, in the following SKETCHES, to enquire, How far MAN, by the laws of his nature, is fitted for society and civil government—Whether his happiness does not require social improvement, and laws, which are the result of his whole nature, lead to civil government—Or whether he is compelled to adopt the latter, by a single, and that a vicious principle in his nature, in opposition to others—Whether, consi­dered as a physical and moral being, the laws of his nature have indulged him any liberty, which he may not enjoy under civil laws and government.

The principal view in these enquiries, will be to endeavor to find the leading Principles of Government, in the laws of social nature, and to trace them into exer­cise, in the establishment of civil institu­tions.

[Page 16]In the United States of America, political opinions, though considered as merely theoretical, cannot be wholly inconsequen­tial. In these States, government is, pro­fessedly, founded in the rights of man. It derives all its energy in the prevention of evil, all its efficacy in the production of happiness, from the sentiments of the peo­ple. The opinions entertained of govern­ment, of the necessity of laws, of the end to be attained by them, and the means of attaining that end, will have an influence on the sentiments of the people, and the reasonings of the legislator. They will, in some measure, form the features of the government, and give a complexion to its laws.

SECTION II. Of the sense in which, Principle, and Prin­ciples of Government, are used in the fol­lowing Sketches.

BEFORE I proceed to the subject pro­posed, I shall take the liberty to premise a few observations on the use of these terms, as they occur frequently in the following work.—From Montesquieu, the term principles, when applied to government, has [Page 17] been used in a more appropriate sense, than in other sciences. In other sciences, it always signifies something fundamental, some leading rule, law, or maxim. Thus we speak of the principles, on which any thing is constructed, as a watch. The term principles here, comprehends, not only the laws of mechanics, but those rules, by which the relative proportions of the several parts are determined, to direct the motions to a certain end. These are properly called the principles of construction.

There are also rules, by which the moving force is applied, and made to operate on the machine, with a view to the end pro­posed. These we call the principles of operation.

The term is frequently used to signify a mere passive power; that power, by which a subject is fitted to exhibit, in consequence of the operation of particular agents upon it, certain effects, agreeably to certain laws. Thus we speak of the principle of fluidity, the inflamable principle, the principle of malleability; and thus we say of man, that the principles of society and government are implanted in his nature; by which we mean, that he is sitted for that state, or, at least, that his nature requires it.

In the science of government, there are the principles of construction, by which [Page 18] government is constituted and organized— the operative principles, by which its acti­vity and efficiency are produced and directed —the passive principles—or the passive powers of man, to which the operative principles are adapted, to produce the end intended, obedience to the laws. The ope­rative and passive principles, in any go­vernment, are determined by the construc­tive principles employed, or the nature of the constitution. They will, therefore, be different, according to the different consti­tutions of government. These, which I have called the operative and passive prin­ciples, Montesquieu, with a view chiefly to the latter, has, by way of eminence, called the principles of government. He seems to be too fond of simplifying, in this in­stance.

The principles of a government are not capable of being perfectly simplified, much less of being reduced to a single principle. Far from it, they are often very complex, and subject to a great variety of modifica­tions, from the admission of different, and sometimes opposite principles. They re­tain, however, in each kind of government, their general and predominant character­istics. The same may be said of all the principles of government, as well as those of Montesquieu. He has defined the prin­ciples [Page 19] of government to be the human passions, which set it in motion. It would, perhaps, have been more accurate to have said, that the human passions are the passive powers of man, by which he is prepared to be operated upon, and to be put in motion to various ends, and in various modes, ac­cording to the choice, application, and direction of the means, or of the operative principles.

He has introduced three different prin­ciples, which he tells us are peculiar to the three principal forms of government; the Despotic, Monarchical, and Republican. Fear, he tells us, i [...] the principle of a des­potic government. This, in his sense of the term, is undoubtedly just. The instru­ments of despotism, are a military force at the beck of the Sovereign, which, by the terror of punishments, or rather of venge­ance, secures obedience to his mandates. Inveterate habits of superstition, frequently, come in aid of the military force, and clothe the messenger of the Prince with the power of armies.

Fear is that passion of human nature, to which the measures of this government are, principally, addressed, and without which the despot could procured obedience, only by the constant and present applica­tion of force, in each particular case.

[Page 20]Honor, he tells us, is the principle of a monarchy. This, taken in his own sense, is very deficient. That passion of emu [...]a­tion, a desire of excellence, which is natu­ral to man, and which, by cultivation, is capable of an infinity of directions, good and evil, is, with the higher orders in monarchy, modified into what is called the principle of honor. But its direct effect in securing obedience to the sovereign, is confined, principally, to those orders. The multitude are under a complicated despot­ism. The nobles, in conjunction with the military order, are the instruments em­ployed to awe the people to obedience. Religion, transformed into a gloomy super­stition, is, usually, employed to the same end.

The principle of a Republic, or rather a Democratic Republic, he calls virtue.— We are liable to be missed by the use of this term, in a sense so different from that, in which it is commonly received. He defines it to be a mere sensation, a faculty of the mind, a love of the laws and our country. In analogy to his other princi­ples, I have ventured to call it a sentiment of attachment to the community, its con­stitution and laws. I will not take upon me to say, that this is altogether just, or that it is sufficiently comprehensive. It [Page 21] is, however, just to the principal purpose, for which it is intended. In a democratic republic, the law is, or ought to be, an expression of the will of the society, being the aggregate of the individual wills. Now, if the will of the aggregate coincide pre­cisely, in all cases, with each individual will, an observance of the law must be as necessary as the power of willing. But this, perhaps, can, in no instance, be the case. The will of the whole, that is the law, is the result of mutual concessions, a com­promise of the individual wills. Hence a necessity, not only of a general approbation of the result, but an attachment to the ge­neral good of the community, as constitut­ed under government and laws, to secure the obedience of each individual member. In this kind of government, no force can be applied, in the execution of the laws, but what depends on this principle. It cer­tainly is no more entitled to be called vir­tue, than any of the social passions common to man; but it has this preeminence over the other principles mentioned above, that it is, when rightly informed, perfectly in harmony with all the moral and social vir­tues, and is best promoted by them.

In the following Sketches, the term Principle, and Principles of Government, is sometimes used in the appropriate sense [Page 22] of Montesquieu, as above explained; but more frequently in the same sense, in which it is used in other sciences.

SECTION I. Of the first rude state—Whether this is to MAN the scene of virtue and happiness, in preference to a state of improvement.

THAT the savage state is a state of na­ture to man, cannot, with truth, be denied. There is not, at this day, a people on earth, who may not trace their origin to a race of savages; some, indeed, more, and some less rude. The Jews, as the writings of Moses and their subsequent historians prove, are far from being an exception. The question is not, whether a rude, un­polished state, be ever a natural state to man; but whether, in the original consti­tution of his nature, he is so formed for happiness in this state, as to exclude any general benefit to be derived from pro­gressive improvement. We are at a loss [Page 23] at what period, in the progress of society, to fix the precise state of nature which is in­tended. Shall we go back to the rude state of the inhabitants of New-Holland, who have learnt to draw no part of their subsistence from the earth, by cultivation? Or shall we chuse the still more rude state of the inhabitants of Terra-del-Fugo, whose sole dependence for food is on the shell fish found in the sands, at the ebb of the tide? Neither of whom have any notion of ho­nesty, or the rights of property, beyond the circle of their several tribes.—Shall we make a little farther advance, and place it among the savages of North-America? They are simple, they are honest, as far as the circle of their several tribes. They take their food from the river or the forest, furnished by the hand of nature. The little deficiencies are supplied from the cul­tivation of the earth. The skins of the chace furnish them with coarse, but com­fortable clothes, or are exchanged for the product of European looms. They are not goaded by ambition, to attempt the acqui­sition of power, which, when acquired, has generally proved the scourge of the human race. They are content, or resigned to the present, and are little anxious about the future. All this is true of the North-American natives, and yet it gives us hard­ly [Page 24] a glimpse of their character. The sav­ages of America, like other men, have their predominant passions. They esteem war and hunting almost the only pursuits worthy of a man. Address in these, con­stitutes their highest point of honor. Every other labor of life is relegated to their wo­men, who are little better than slaves. Hence they derive an excessive ferocity of manners. Their resentment is keen, and revenge their most darling gratification. This arises from their state of society, in which every man is left to judge in his own cause, and to avenge his own wrongs. As they never forget a favor, so they never forgive an injury.

Among their different tribes, the injuries of an individual are resented as national. The possession of a hunting ground is, to them, the possession of an empire. These are sources of frequent wars, waged with the most savage ferocity. The butchering and scalping of old men, women, and chil­dren, the torturing and burning of prison­ers, in cold blood, with the most shocking circumstances of cruelty, are among their pastimes. These are not secret acts of vi­olence. They are by none considered as wrong. They are public transactions, per­formed, under what is, to them, the law of nations.

[Page 25]As they are not anxious about the future, they are, for the same reason, almost wholly improvident. When not engaged in their favorite pursuits of war, or hunting, they are too indolent to think of making an adequate provision against the inclemency of the season, or, indeed, against any future want. As they have fewer vices, so they have fewer virtues than more civilized na­tions; and both are more prominent, more distinctly marked. This arises from the paucity of the objects, with which they are conversant. With them, numerous passions, correcting and restraining each other, are not, as in a state of civilization, equally excited by a multiplicity of objects. When any object rouses their attention, the whole force of the mind, the whole vigor of the soul, is collected, and exerted upon one point.

Hospitality is a virtue, almost peculiar to a savage people, and the sinest trait in their character. When we contemplate this virtue, among such a people, it strikes the mind with all the advantage of vivid sentiment, singularity of impression, and contrast of manners. Every recollection is accompanied with an enthusiastic admira­tion, that makes us regret the loss of those manners, which were alone capable of this sublime virtue. Will it still be [Page 26] thought strange to assert, that this virtue derives its origin, and takes its principal lustre from the barbarous manners of the age? And yet so is the fact. It does not, however, consist with the rudest state of society and of manners. Some advance in civilization, some progress in the arts of life, is necessary to give a relish for hos­pitality, and to supply the means of in­dulging it. Among a people in the hunter state, it makes but little figure. Depend­ing upon the fortune of the chase, or the gleanings of the forest, they find but a scanty, and precarious subsistence. With neither the foresight, nor the means, of making a secure provision for the future, they are frequently in want of necessary sustenance. Among such a people, the pressing demands of nature leave little of their scanty stores for the uses of hospitality. They have little curiosity, and no con­ception of any knowlege, which can be of use, beyond that of forming the bow, or some instrument of the chace. In this situation, what can, with them, compensate for an additional tax upon their already half famished appetites? The North-American natives have never been equally noted for the practice of this virtue, with the ancient Germans, or the more ancient inhabitants of Greece. They draw but a [Page 27] small share of their subsistence from the earth. All the care of their tillage, con­sisting in that of maize, beans, and some few edible roots, is left to the women. The labor of these, spared from their at­tendance on the men in the chace, and other drudgeries of a domestic nature, without the assistance of domestic animals, and with such rude implements as they can either form or procure, must yield a very scanty supply, for one part of the year; the other is, for the most part, as scantily supplied, by the fortune of the chace. They appear to have little relish for any new arts of life, unless they have some relation to their principal occupations of war and hunting; and very little curiosity for any information to be derived from an intercourse with strangers. Instances, however, are not wanting, in which they have discovered all that fidelity to their guests, all that warmth of attachment, which gives such a charm to the patriarchal times. Although the instances are less frequent, they bear the same genuine character of heroic integrity.

The shepherd state secures a more ready and abundant supply of food and domestic conveniences. Men more at ease, con­versation begins to acquire a charm. More arts become necessary. The useful, and convenient engage the attention. New [Page 28] objects afford gratification to an awakened curiosity. Still they are generally divided into small tribes. Their domestic manners are sincere, but rough. To foreigness they are fierce, cruel, and faithless. So universal is the state of war among such a people, that in almost every language, the same word, originally, signified both foreign­er and enemy. Disputed boundaries are often the occasion of wars. They are often waged to avenge a private quarrel. To surprise and plunder the neighboring tribes of their herds, is the principal object of their hostile enterprises. Their whole history is a continued scene of war, pillage, and reprisal. So frequent were these pre­datory expeditions among the petty tribes of ancient Greece, that they were early honored with a particular appellation. ^* In such a state of society and of nations, the use of coin is unknown. Their whole commerce consists in an exchange of com­modities in kind. These are, usually, bulky, and unfit to attend the person of the owner, to answer his occasions in tra­velling; nor could they attend him, with any degree of security, among a people, who reckon the plundering of foreigners a lawful mean of acquisition. Inns for the [Page 29] accommodation of travellers are unknown. Were it not for the hospitality of indivi­duals, there could be no passing from one country to another. There is something in the practice very congenial to the frank, rough, and generous manners of a rude people. Their generosity, however, in this favorite instance, rises, as it were, through a cloud. We find by Homer, that strang­ers, usually, applied to their intended hosts, in the posture of suppliants, and intreated the rights of hospitality, as for their lives. His instances may, indeed, be considered as poetic fictions; but they were, undoubt­edly, relative to the manner of the age. To grant the rights of hospitality, was, to grant protection. The host, or patron, was considered as the protector of his guest. This office suited with a martial spirit. It gave the host consequence in his own esti­mation, and in the estimation of others. The practice of this virtue, among rude nations, affords not only a gratification to curiosity, but an opportunity of indulging in the exercise of humanity to a stranger, without incuring the imputation of a want of attachment to the tribe. The advanta­ges are national and reciprocal. In no other way can they acquire a knowlege of foreign nations, their arts and manners. Like the safety of heralds, it passes into [Page 30] their law of nations. In ancient writers, we frequently read of the rights of hospi­tality, of the laws of hospitality, and of wars to avenge the violations of those rights. Indeed, it is rather to be considered as a national, than a private virtue. In the present state of improvement, among civilized nations, almost every reason, which concurred, among savages, to the establishment of hospitality, has ceased, and the practice has ceased of course. The arts of writing and printing have furnished almost innumerable vehicles of intelli­gence, always at command. Knowlege of all the arts of life is diffused, with facility, safety, and accuracy, as far as the use of letters is known. The cultivation of the gentle passions, an improved sense of the duties of humanity, a knowlege of its rights, and the protection afforded to those rights by the law of nations, and by the civil laws of most countries, have superseded the necessity of individual protection. Public accommodations have become much more convenient for travellers, than private hospitality. The universal intro­duction and currency of money, has given men the command of a kind of property, which may, with ease and safety, attend their persons, and provide for them, in all their peregrinations.

[Page 31]Most men who travel, at this day, are en­gaged in pursuits of interest, or gratifications of a private nature. In this state of things, hospitality, in the ancient practice, would be unnecessary, unjust, and intolerably burdensome. And why should we regret its loss? Let those who entertain such an enthusiastic veneration for hospitality, and other ancient virtues of the same origin, reflect, that they cannot have the effect without the cause; and that those precious gems of savage virtue would lose their lustre and estimation, without the foil of savage vices.

This short sketch is sufficient to prove, that the first rude state of man, or, if we chuse the expression, the first simple state of society, does not most abound in virtue and happiness. I have given, indeed, a short, but, I believe, a true sketch of every equally uncivilized tribe on earth. Shall I be forgiven the censure, if I say, this opinion of a preference of the savage to a civilized state of society, has been propa­gated, by the glowing pens of some writ­ers, whose love of virtue exceeded their information? Had they attended to the science of human nature, the developement of the human mind, the powers, faculties, passions, and appetites of man; had they studied, attentively, the history, not of battles [Page 32] and sieges only, the intrigues of statesmen, and the revolutions of empires; but the history of man in society, the natural history of the human mind, they would have found reason for correcting their opinion.

This science, so important to man, has, till very lately, been hardly attempted by any writer. In the first ages of society, none are capable of making or recording proper observations. One half of the pro­gress has, generally, passed unnoticed. In following ages, historians, hurried away by the more splendid events of history, have mostly neglected those facts, which serve to mark the progressive improvement of the mind; and readers have been, equally, inattentive to the few, which have been recorded. In America, the best opportu­nity, which ever presented, for supplying these deficiencies, by observations on real life and manners, has been suffered to es­cape, with very little improvement.

SECTION II. Of the appetite for society—The hoarding appetite—The appetite which leads to the propagation of the species—Ambition— Sympathy.

WE will now briefly enquire, how far man, without any consideration of mu­tual wants, or a necessity of mutual de­fence, arising from a sense of weakness, or wickedness, is fitted for society. That surely is his natural state, to which the laws of his nature, general and particular, all tend. Here let me premise, that with man, a state of improvement is not opposed to a state of nature. Perhaps as good a definition as any, which has been given of man, in this view, is, that he is a being capable of improvement, in a progression, of which he knows not the limits. Deity has implanted, in his nature, the seeds of improvement, furnished him with powers and faculties for the cultivation, and to these, superadded a sense, that the cultivation is a duty.

The first thing which strikes the mind, in the course of our enquiry, is an appetite for society. Man desires to associate with man, and feels a pleasure at the approach of his kind. The appetite is so universally [Page 34] prevalent, that it can not well be denied to be the work of nature. The same appetite, under the name of instinct, produces all those associations, which are found to pre­vail among all gregarious animals of the brute creation. With them, it is allowed to be natural. Why not allow it to be so with man, to whom it is so much more extensively necessary and useful?

It has been made a question, whether the social appetite be limited, in the number of its objects? I think this question will admit, though not of a precise, yet of a sa­tisfactory answer. It is adapted to the oc­casions, the powers and faculties of man, and admits of an equal extention by im­provement: Accordingly, in the early and unimproved stages of society, while the powers and faculties of the human mind were in their infancy, we have every where seen men associating in small, independent tribes. If at any time, larger associations have been formed, in that state, like some of the great empires of antiquity, they were not the effect of choice, but of supe­rior force. Agreeably to this opinion, we find, that the parts were very loosely con­nected, and every where crumbled in piec­es, as soon as that force was removed.

As mankind increase in knowlege, as their powers and faculties are extended, [Page 35] and the comprehension of the mind en­larged, they, voluntarily, extend their asso­ciations. To determine, therefore, the limits of the social appetite, we must de­termine the limits of social improvements.

This appetite is accompanied with other appetites, with passions and instincts, which have no use, no gratification, no object, but in society. Hardly can we find one, which terminates wholly in self, not one, which stands opposed to society. Of com­passion, sympathy, and all the train of be­nevolent passions and emotions, society is, clearly, the ultimate object. Others tend to the preservation of the species, or of the individuals. Such is the hoarding appe­tite, and the passion for riches, to which it gives rise; the appetite, which leads to the propagation of the species, and its conse­quent passions—even these are not solitary. They do not terminate, wholly, in self.— No, not the hoarding appetite, which, if any, might be thought an exception. Here self often predominates; but in general, the passion for riches, stript of every view to society, becomes very faint, if not totally extinct.

The man who is intent upon gain, has some connection, some friend, whom he wishes to benefit by his acquisitions. He views the acquisition of riches as a mean, [Page 36] not an end; a mean of future support and personal indulgence, it is true; but, at the same time, a mean of benefiting some, and of acquiring esteem, confidence, and influence among all. Some instances have indeed been known of solitary misers, who have made the amassing of riches the sole end of their pursuits. Some indivi­duals have, likewise, conceived an aversion to man, and have secluded themselves from society. These are considered as deviat­ing from the common sense of their species, the common standard of man. They are instances of the abuse of natural passions; or they are anomalies of the race. There are other anomalies; but from such we do not take the common nature of man.

The appetite, which leads to the propa­gation of the species, is, perhaps, in its origin, a vague, indeterminate impulse to gratification. The principal end of this appetite, doubtless, is the continuation of the species, by a perpetual re-production. In this view it is the constant revivifying principle of society; but the author of our being, whose all-comprehensive plan is adjusted, in the most perfect harmony, has made it further subservient to the purposes of social happiness. Nature, by making it the source of a specific passion, accom­panied with sentiments of delicacy and tender­ness, [Page 37] corrects the vagueness of the appetite. This forms one of the strongest bonds of society, and gives the most enchanting softness to the tout ensemble.

Ambition, when in balance with other passions and appetites, is far from being opposed to society. Far from being detri­mental, it is highly useful to man. By this passion, many actions, the noblest and most beneficial to society, are produced. It is only in the extreme, that the passion becomes hurtful; when the acquisition of power or influence is no longer considered as a mean of doing good; when the passion aims, solely, or principally at its own gra­tification. But this is doing violence to the laws of nature, which result from the whole nature of man. It is a sacrifice of one part of his nature to another.

The passions of hatred, revenge, and some other passions, and emotions, the effects of which, are, not unfrequently, very pernicious in society, will be reserved for another section. In the remainder of this section, we will attend to some emotions, purely of a social tendency.

Sympathy is an ingredient in the social nature of man, deserving of very particular attention. The modus agendi, or how the emotion of sympathy is produced; whether it be wholly mental; the reflection of a [Page 38] sentiment; or whether it be partly organ­ical, partly mental, is, perhaps, one of the secrets of nature; but the effect is evident, and the final cause illustrious. It is one of those nice adjustments in the nature of man, which give us the most exalted idea of the wisdom and benevolence of its author. In the smaller circles of life, its influence is more immediate, more direct; but its influence extends to whole nations and empires.— Sympathy is produced thro' the medium of an organic impression. We perceive some­thing in the countenance, the movement, the whole figure of the person, which we take for the expression of a sentiment, or a particular state of mind in that person. We instantaneously, seemingly by a direct im­pression, without time for reflection, find excited in ourselves a corresponding tone of mind, corresponding sentiments, producing similar expressions. The emotion, though we have a sense of pain and distress in the object, is not repulsive. On the contrary, we feel a powerful attraction to objects of distress. Thus man is sweetly prepared, by nature, to mourn with those who mourn, and rejoice with those who rejoice. The emotion of sympathy, not only prevents a thousand discords, but produces, in society, a kind of instinctive harmony.

[Page 39]There is another impression of sympathy, which seems to be mostly organic, or an effect on the nerves only. One person yawning in company, will produce a spon­taneous yawn in all present, at least, in all who see him in the act. When we see a person suddenly hurt, or hear of one being wounded in any particular part, or of the amputation of a limb, we feel a particular affection of the nerves in that part, which thence thrills through the whole frame, conveying, at once, to the heart, a sense of the pains supposed to be endured by the patient. This may be a reason, why when we hear of a person being wounded, we are anxious to learn the manner, and par [...]i­cular place of the wound. While our information is general, the affection is gene­ral. We endure something like a state of suspense. This is a sitation of, apparently, greater uneasiness, than when the sensation is reduced to the corresponding part.

Lord Kaims has beautifully unfolded the sympathetic emotion of virtue, ^* but it ought not to be omitted here. When we are witnesses, or hear of the performance of any great, noble, and benevolent action, we find, excited in ourselves, a strong dis­position to perform the same kind of action. The mind swells with an ardent desire to [Page 40] find a proper opportunity, or a proper ob­ject.

These emotions of sympathy, are not the effect of reasoning: they rather resem­ble instinctive impulses. Sympathy, with­out the intervention of words, blends the thoughts, the sentiments, and even the virtuous disposition of individuals. It dif­fuses joys of the heart, from countenance to countenance, commands relief in dis­tress, and consolation in affliction. Mon­tesquieu alludes to this principle in human nature, when he observes, that, "people are, generally, able to communicate their ideas to their children; but they are still better able to transmit their passions." This disposition to sympathy well accounts for all that similarity of sentiments, charac­ter, and even of features, which is observa­ble in families, societies, and nations; the less perfect, indeed, the more extensive the connection.

SECTION III. Of Hatred and Revenge—Of Envy, Malice, and some other dissocial Passions.

THE passions of Hatred and Revenge, are not, in their nature, opposed to society, though, from abuse, they become, at times, very pernicious. On a candid enquiry, it will be found, that those passions do not arise from any malignity in the nature of man. They are given for wise and good purposes. They are necessary to a being capable of right and wrong in his actions; capable of injuring as well as benefiting others, and liable to be, himself, the subject of injuries from those of his own species.

Men are intuitively conscious of a free­dom of action, of a choice in what they do. We know, at the same time, that man is not a perfect being. He has many weak­nesses. There fall in his way motives to action infinitely various. Sometimes his choice is influenced by ignorance, by error, by the prevalence of particular passions, or appetites, a present desire of gratification. Sometimes, he is confounded with an intri­cate combination of circumstances, the re­sult of which, he wants the power, or the patience to evolve. He is frequently tempted to a deviation from justice, by an [Page 42] opposition of interests, originating, not in a direct intention of the parties, but the want of an early foresight in each of the other's intended pursuits. To a being thus circumstanced, powerful moral restraints are necessary. Such restraints are provided for man, which come in aid of the moral sense, and are made to arise from the con­sequence of his actions. It is evidently a constitution of Providence, that vice shall produce misery, to the agent, and that virtue shall produce happiness, as a conse­quence, connected in both, by the relation of cause and effect. The passions of hatred and revenge will be found to accord with this constitution.

The more fully to investigate this subject, it will be necessary to take a nearer view of human nature. Man, in an unimproved state, is very little acquainted with the ope­rations of his own mind, the extent of his powers and faculties, and the result of their various combinations. For their develope­ment, he is furnished with senses, internal and external, accompanied with the powers of reason and investigation. It is here, as in physics, no reliance can be had on rea­sonings, a priori. Experience alone can decide. Man, therefore, fully to discover the direction and extent of his powers and faculties, and the right tendency of his [Page 43] whole nature, must, with sufficient atten­tion and presence of mind, to mark the result, pass through such a variety of situ­ations, as will bring all into exercise, and put all to the test, in every variety of com­bination. It is a matter of great difficulty, to make just and accurate observations on a subject, so evanescent, as are the opera­tions of the mind, and always in transitu. They are past, ere there is time for reflec­tion. On the most important occasions, the whole mind is wrapped in attention to some external object. Add to this, sub­jected as man is, though for wise purposes, to the influence of habit, his observations will be, frequently, partial, and his con­clusions warped by some present prevailing bias. It is evident, therefore, that, farther than the direct perception of the moral sense, in its most simple state, the progress of knowlege, in moral and social combin­ations, will be slow; how slow, a slight attention to the history of the human mind, will evince. We are taught, by reason and experience, that the less man is able to discern agreements and tendencies, the more liable he is to do wrong; the more liable, from partial views, instead of seeking a compromise, to sacrifice to his own, the interest of others; at the same time he is less able to devise and enforce those social rules, which might remedy the evil.

[Page 44]In the first rude stages of society, men have no idea of general rules, or public punishments, for the prevention of private injuries. They are unable to connect pri­vate injuries with the common concerns of the nation. The redress and prevention of these, are left to the care of each indi­vidual. In a situation like this, hatred and revenge are the only possible external checks. These passions go to the nature of each individual. Hatred is a rooted aver­sion of one man to another, on account of a real, or supposed, fixed and intentional opposition to his interest, or happiness. Revenge, is a desire in one person, to inflict an evil on another, for a real, or supposed injury received. Hatred dictates the avoid­ance of its object, as disagreeable or nox­ious. Revenge pursues its object, and is gratified, only with retaliating the injury. Such conduct is dictated by the law of self-preservation, and is the more necessary, as there is no other external restraint, no other mean of escaping, or preventing fu­ture injuries. Thus limited and directed, they are both necessary for the prevention of a licentiousness in injuries, unrestrained by any fear of the consequences.

In the progress of improvement, an ex­tension of social intercourse, the invention of arts, the change of manners, the separa­tion [Page 45] of property, the multiplication of desires, and objects of gratification, form a scene too intricate, a combination of interests too complicated for the former simple mode of society. Liability to injuries is increas­ed in proportion. The passion of revenge, almost constantly in exercise, would, in this state, if laid under no restraint, become a most cruel scourge. Nature is always equal to her occasions. Active enterprise, and extensive pursuits, invigorate and en­la [...] l [...] [...] powers of the mind, and render m [...] [...] the task of a more extensive legislation. They are led, by degrees, in some measure, to comprehend their situa­tion; to evolve the combination of their various interests; to form those laws, which may have a tendency to prevent a direct opposition; to provide a reparation for injuries, and punishments for the re­straint of wanton violence. Still, the pro­gress is slow. It is long before men can be persuaded to accept only a reparation for injuries, and submit to society, the sole right of punishing for prevention, which comes in the place of revenge.

The right to revenge private injuries, in the most improved state of society, in the highest refinement of manners, never wholly ceases. Nor is it demanded.— There will exist many little oppositions, [Page 46] many little injuries, to which the law can­not descend, and which, if neglected, be­come the source of greater violences. The exercise of hatred and revenge, by the party injured, is still the only restraint, in these cases. In a state of refinement, however, these passions are stript of their violence. An avoidance in company, a look of con­tempt, a silent glance of indignation, may prove a sufficient restraint to a person, at all susceptible of the nicer feelings. In this state, they are hardly known for the same passion [...] Still, they are the same, only chastised and accommodated to a more improved state of society. Before, they acted a primary p [...] as sovereign in the distribution of punishments. Now they act a subordinate part, coming in aid of the law, in matters of smaller moment. They are, indeed, liable to great abuses; and what is exempt from abuse, in the hands of a fallible being? We should be but ill fitted for society, in any state, without them. In an improved and well regulated society, the abuse can never be very extensive, in its consequences. Let us not rashly at­tempt to correct the wisdom of Deity. Much better is it for us, that we suffer the abuse of them, than the total extinction.

Envy, malice, and avarice, have been accounted instances of natural passions, [Page 47] which are dissocial, and tend to prove, that man is little fitted for happiness in society. I will not contend about the term, natural. It is true, that man is capable of these pas­sions, and of many other vicious passions and habits. A little reflection, however, will discover, that these are not original in his nature. They have their origin in the abuse of those natural passions, which are necessary to his happiness, both as a social being, and as an individual.

Envy is generally said to be Emulation carried to excess. This is undoubtedly true; but, in exercise, it certainly partakes of the passion of Revenge. Emulation is a desire to excel others, in the public esti­mation. The passion is not, directly, ei­ther social or dissocial, but is, in its conse­quences, frequently, very beneficial to so­ciety. While a person strives, by the ac­quisition of superior excellence, to deserve a preference, in the public opinion, it may be, emphatically, called the strife of virtue. The happiness of society is interested in the contest. When a person deserts the prime object, the acquisition of real excel­lence, and strives, by the depression of a competitor, to enjoy the public estimation unrivalled, it has degenerated into envy. It is now the contest of vice. A person, under the dominion of this passion, is prone [Page 48] to exaggerate every little fault, in a com­petitor, and to convert, even his virtuous actions into vices, by attributing them to corrupt motives. Every excellence, in a rival, is viewed, as hostile; every advance, a personal injury. To complete the tur­pitude of the passion, and fill up the measure of vice, the passion of revenge is called in to its aid.

Malice is a disposition to inflict evil on others, without just cause. The disposition is inflamed into a passion, whenever a pro­per object is presented. It may be called a perpetual anger. It is equally irrational with that passion. Some persons appear to derive, from their organization, an irrit­ability of mind, which easily admits this disposition. In general, malice prevails most among a people of fierce and rough manners, where the common tone of the mind borders upon anger. It is more rare in an improved state of society and manners, and where it is discovered, may, generally, be traced to its source, in a series of disap­pointments, insults, and hard usage, which have habituated the mind to a state of irrit­ation. In all these cases, it is easily per­ceived, that a malicious disposition, is, ori­ginally, no part of the common nature of man. It is wholly adventitious. It is a vicious habit of mind admitted and con­firmed, [Page 49] by a too easy indulgence of the irritable feelings.

Avarice is the excess of that passion, which accompanies the hoarding appetite, as mentioned, in a former section; the passion, which prompts man to provide for his future necessity, or conveniences. It is the foundation of all his providence. He could not even subsist without it. Like other passions, it is liable to abuse; to be converted into avarice, and become, indi­rectly, an incentive to the most horrid vices.

There are passions, which originate in habit. Every habit gives [...]se to an at­tendant passion, which impels to the indulg­ence of the habit. vicious habits are at­tended with vicious passions, many of which have the most pernicious consequences in society. Such passions have no pretence of being natural, or, original in the mind of man. The habits, from which they are derived, are formed in the mind, through the neglect, or abuse of some natural power, faculty, or propensity. They may, like every vice, be admitted or excluded, at the election of the mind. They may, there­fore, with exact propriety, be denominated artificial.

That any of the passions, faculties, or propensities of man may be abused, proves only, that he is a moral agent, capable, in [Page 50] his actions, of chusing between good and evil; or that he is imperfect, and liable to deception, and sometimes aberrations from virtue, without designing the consequences. Were it an objection to any passion, propen­sity, power, or faculty, that it might be ab [...]d to the injury of mankind, not one would escape condemnation. The faculty of reason would not be exempt. Generos­ity itself must be accounted an evil, because it sometimes mis-judges, and sometimes turns to prodigality.

Upon a candid view of the subject, I think we may fairly conclude, that man is, by the laws of his common nature, as con­stituted by the author of his being, fitted for a state of society, and of social im­provements; that his happiness depends on the right use of his passions, appetites, powers, and faculties, agreeably to the laws of social nature; that, as a moral being, capable of vicious, as well as virtuous ac­tions, he may deviate from his destination, violate the laws of his nature, and disturb his own happiness, and the happiness of society.

SECTION I. Of the Moral Sense—Active and Passive Powers—Sense of Accountability —The Social Sense—and Patriotism—as they relate to Civil Society.

IN the preceding sketch we have seen that Man, as far as depends on his natural passions, appetites, and instinctive emotions, is fitted and intended for the social state. We shall now enquire how far he is, by his nature, sitted for government: for civil institutions and laws.

Man is furnished with a moral sense, ^* by which he perceives the right, and the [Page 52] wrong of his actions. This sense is faint and limited at first; but is invigorated, and extended, in the course of social improve­ment. It is the final arbiter of justice, vera­city, and all the moral virtues, of all the moral actions of the man, whether social, or selfish. When he perceives his actions to be right, or productive of good, agreeably to the order of his nature, he is conscious of a virtuous approbation; when he per­ceives them to be wrong, he suffers the painful emotion of disapprobation. Hence arises his love of justice, veracity, and all the social, all the moral virtues. What he is conscious of in himself, he expects to find in others. This is the foundation of his confidence in the justice of others, and his reliance on human testimony. That he sometimes violates those virtues, is no proof, that he does not love, and admire them. Justice, for instance, is the result of action, of moral action; or rather, it is the result [Page 53] of certain reciprocal relations between the action, the agent, and the object. It is often, therefore, not a little complex. A little more, or less comprehension of these relations, may, wholly, vary the result, as to the moral quality of the action. View­ing things through the medium of preju­dice, or of some predominant passion, or appetite, man is liable to err, as well in the association, as in the application; and while he loves virtue, in general, to admit vice in particulars.

Considered as to his mind, man has act­ive as well as passive powers. He is capa­ble of deliberation and choice. He is, like­wise, capable of various impressions from external objects. These impressions intro­duce a change in the mind, which is the subject. A difference in the subject, gives a difference to the effects produced by the same cause. Hence it is, that, not only different men, but frequently the same man, at different times, may be very differ­ently affected by the same object, and the same motive have a different influence. Hence comes a fluctuation of choice. This fluctuation is corrected by the moral sense, by the force of habit and of reason, which place a choice of objects, or the admission of the causes of such impressions, in the power of the mind. Were man unassaila­ble [Page 54] by external impulses; were the influence of motives excluded, did his nature admit one line of conduct, only, without any mo­dification, he would be, wholly, unaccom­modating, a being wholly unaccountable. Laws might as well be promulgated to a machine. Sanctions and punishments could add no inducement to the observance. To an omniscient and all-perfect being, this might, perhaps, be a desirable state; but it is ill suited to the imperfections of man.

Thus, by a little attention, we discover, that the very constitution, which on a curs­ory view, seemed hardly to admit of gov­ernment and laws, is nevertheless, well adapted to that state. It is no objection to say, man is imperfect; it is only to say, he is man. His imperfections, to a certain degree, fit him to be a subject of govern­ment. We shall see, hereafter, that they render it indispensibly necessary.

Man has, likewise, an appetite for the approbation of others, which contributes not a little to his sense of accountability. The sense of accountability is a very princi­pal ingredient in the moral nature of man. When he has done well, he is conscious that he is deserving of approbation; when ill, of punishment. In the same manner, he judges of the actions of others. ^* Thus [Page 55] he is made to perceive the justice of punish­ment, and the moral necessity of submiting to laws, which comport with his moral nature.

There is one sense, which I will venture to call the social sense. Though its effects have been often noticed, I do not recollect, that it has been distinctly handled by any writer on society. When a man considers himself, as connected with any society, he is, if I may use the expression, perceptively conscious of a kind of individuality of him­self with the aggregate. The perception is more, or less distinct, as the connection is more, or less intimate. This sense, if it be not the germ of every social attachment, certainly, gives strength to the attachment, and vigor to patriotism itself. It is a very necessary part of the social nature of man, and of great importance to government. It is not only the soul of individuality to the whole government, but, as there will be numerous subordinate connections in the same government, it makes all the individ­uals of the same connection, in some measure sponsors for the actions of each. They perceptively enjoy the virtues, both of the individuals of the connection, and of the ag­gregate. Each feels, as of right, the re­proach of the other's crimes, and the justice of their punishment. I think the existence [Page 56] of the social sense will not be doubted by any, who will carefully attend to the opera­tion of their own minds.

The perceptions of this sense have, in­deed, given rise to a principle, which has been grosly abused to the oppression of mankind. In many governments, the hor­rid practice has prevailed of involving, in the punishment of offenders, all of the same family and connection, however remote. It has prevailed, mostly, in despotic states. It, there, coincides with the principles of the government, which make it a crime for a man to be placed, even by nature herself, in a situation, in which he might dare to think himself injured, by the actions of the Prince. The principle, by no means justi­fies the practice; but it, in some measure, accounts for its origin. It, likewise, ac­counts for the practice of retaliation, repri­sals, and many other practices, adopted in the law of nations. And, here, humanity might vindicate her rights, and assert, that the practice is, too often, carried further than the principle will warrant.

Patriotism, or love of country, makes an illustrious figure in civil institutions. It is indispensibly necessary to any degree of security, or prosperity in a nation. The whole community is the object of this pas­sion. In its effects, it unites the individual [Page 57] members, in the pursuit of public measures, and on necessary occasions, gives a common preference of public to private good. To the common interest, in the defence and prosperity of the nation, it adds an affection, great as the object, on which it is exerted.

It has been made a question by some, whether this passion be among the natural passions of man. The Abbe Raynal has asserted the contrary. Speaking of the inhabitants of Brazil, he says, "They shew no paticular attachment to their native place. The love of country, which is a ruling passion in civilized states; which, in good governments, rises to enthusiasm, and in bad ones, grows habitual; this love of our country is but a f [...]ctitious sentiment aris­ing from society; but unknown in a state of nature." ^* Let us carefully examine this opinion. At this day, facts, and not names, give a currency to opinions.

Though in speaking of the Brazillians, the Abbe mentions only their want of at­tachment to their native soil; yet, in his general position, he comprehends all the most distinctive properties of that love of country, which is, generally, denominated patriotism. In this sense, the love of coun­try, is the love of the community. An at­tachment to the soil collects, limits, and [Page 58] fixes the passion, and gives a locality to its object; but is not necessary to its existence. Take from the country the community, all its inhabitants, the object ceases.

Were this passion not discovered, in the first rude state of society, no conclusive ar­gument could, in this point, be drawn from that circumstance. Most, or all the passions of man, are, originally, capacities only. Capacities may, and do exist, antecedent to the objects, to which they are adapted. They can be discovered in exercise only, and they cannot be exhibited in exercise, until they meet a proper subject for their exertion. Many of them are like plants in the germ. They exhibit not their species, until they are expanded by a proper cultivation. Shall we say, the oak is not a tree of nature, be­cause, in its first state, it is but a germ in the acorn? Shall we say, the appetite, which leads to the propagation of the spe­cies, and its consequenti [...]l passions, are not natural, because they are not discovered in the infant of a day?

If we rely on facts, history has not re­corded, or modern researches discovered, a single people, in this state of nature, a state, in which the love of country, an attachment to the community, does not make a conspi­cuous figure. The ancient barbarians of the north, from whom the modern inhabit­ants [Page 59] of Europe are, mostly, descended, fur­nish, every where, proofs of the existence of this passion; of vigorous national attach­ments. It is true, that their attachment to the soil was not so strong. This attach­ment is fixed, principally, by the cultivation of the earth for subsistence, which collects the interest and attention to one spot, and gives a locality to conveniences.

It is not, however, true, that savages have, in general, but feeble attachments to the soil of their country. On the contrary, in this respect, they are, in a great measure, capable of the same habits, passions, and sentiments, as the man of civilization. They occupy, with their habitations, but a small part of what they call their country. The greater part is reserved for pasture, or for hunting ground. It is the great farm of the tribe. They readily remove from one part of this to another; but war, fam­ine, or some more powerful cause, is neces­sary to compel them to a total emigration.

The ancient Scythians, from whom the modern Tartars are descended, were a nation of herdsmen. Their riches consisted prin­cipally in horses, which supplied them with both food and carriage. Their habitations were booths, or tents of easy construction. In a country of great extent, they prefered only those places, which afforded the greatest [Page 60] plenty of fresh pastures. In search of these, they made frequent and distant removals.

We find, that among this people, as early as the reign of Darius, the son of Hystaspes, the love of country was a vigorous passion. Their national attachments were strong, and they were attached to the soil of their country, not so much because it afforded them subsistence by cultivation, as because it contained the tombs of their ancestors. According to Herodotus, Indathyrs [...]s, who was a prince, or a head warrior in that country, sent the following message to Da­rius, then attempting the conquest of Scy­thia: —"If I fly before the [...] Prince of the Persians, it is not because I fear thee. What I do now, I am used to do in times of peace. We Scythians have neither houses nor lands to defend, if thou hast a mind to force us to come to an engagement, come and attack the tombs of our fathers, and then thou shalt find what manner of men we are." Such a people could be no strangers to pa­triotism.

The savages of North-America are a living instance of the vigor of this passion among a rude, uncultivated people. The European writers have been greatly abused in their information concerning the Ameri­can natives. Buffon has asserted, that, "Among them, paternal love, and filial [Page 61] affection are very faint. The most inti­mate connection, that of family, has but feeble ties. There is no society between one family and another; of course there is no national union, no republic, no social state." ^*

The Abbe Raynal, in his observations on America, has copied many things from Buffon, and probably, here, he found that state of nature, to which he alludes in the passage above recited. Happily, such a state of nature does not exist. In the same ac­count of the inhabitants of Brazil, the Abbe speaks of their ancient mode of liv­ing, in that country. What but an attach­ment to the soil could have been the cause of the continuance of this people, in the same country, thro' a succession of ages? to what but a national attachment shall we at­tribute their national manners, and the national resentment of which he there speaks?

In another place he gives an instance, which contradicts every part of the social character given of the American natives, by Buffon, and militates, strongly, against his [Page 62] own opinion, that in what he calls a state of nature, the love of country is unknown. The French wanted to persuade some of the savages of Canada to remove to a dist­ance from their native soil. On this occa­sion, one of their Chiefs made the following speech: "We were born (said he) on this ground. Our fathers lie buried in it. Shall we say to the bones of our fathers, Arise, and come with us into a foreign land?" Is this the language of a people, who are almost void of parental and filial affection? who have no national attach­ments? no republic? no social state?

Logan, a Mingo Chief, in his speech, ^* sent to the Governor of Virginia, at the close of an Indian war, in the year 1774, discovers the same sentiments of patriotism. The reader will not be displeased to see the whole of this beautiful passage. It is equal to volumes on the character of that people. "I appeal to any white man," says he, "to say, if ever he came to Logan's cabin, hungry, and he gave him not meat; if he ever came cold and naked, and he clothed him not. During the course of the last, long, and bloody war, Logan remained idle in his cabin, an advocate for peace. Such was my love for the whites, that my coun­trymen pointed as they went, and said, Logan is the friend of white men. I had [Page 63] even thought to have lived with you, but for the injuries of one man. Col. Cressop, last spring, in cold blood, and unprovoked, murdered all the relations of Logan, not sparing even my women and children. There runs not a drop of my blood in the veins of any living creature. This called on me for revenge. I have fought. I have killed many. I have fully glutted my vengeance. For my country, I rejoice at the beams of peace:—But do not harbour a thought that mine is the joy of fear. Logan never felt fear. He would not turn on his heel to save his life. Who is there to mourn for Logan? Not one."

Where shall we find the love of country more emphatically, more beautifully ex­pressed? The people of the United States, who have had frequent occasion to transact business with the American natives, both as individuals, and in their national coun­cils, know the strength of their national attachments.

The farther we go back, with men, to­wards the state, so fondly, and partially, deemed the only true state of nature, the more vigorous we find that passion, which attaches them to their little communities. What then is the result? Why, clearly, that the author of existence, to fit men for [Page 64] society and civil government, has strongly incorporated this passion in [...] nature.

SECTION II. OF A SENSE OF PROPERTY. ^*

THE rights of property make so great a figure in the laws of every government, it may not be amiss to give a little attention to man, in relation to those rights. Much has been said, by writers on law and go­vernment, concerning the origin of the right of property, and many enquiries have been made, whence man comes by the idea of that right, so universally prevalent. I have met with but one opinion, which can give any satisfaction on the subject. Lord Kaims has employed several essays in its illustration. ^† The reader will readily discern, how far I am indebted to that ex­cellent author, for some of the following observations.

[Page 65]It is now, I believe pretty generally agreed, that man is furnished with internal, as well as external senses. The objects of the internal senses are, mostly, moral rela­tions. Among these, is a sense of property; a sense, by which the mind perceives, intu­itively, without the intervention of reason­ing, a right of property. Whether it be a distinct sense, or a branch of the moral sense, is not material to enquire. This is to be ob­served, that the perception is only of relati­ons, from which results the right of proper­ty. As a distinct sense, it does not extend to the modes of acquisition, but leaves them to the cognizance of the moral sense.

The relation, in which consists the right of property, seems not to be a moral relation, nor wholly a corporal relation, as of parts. The relation between me and the table, on which I write at present, by which it is mine, seems to have nothing of a moral quality in it, without the intervening rela­tion of some other person. It is, doubtless, very simple. It has never yet been defin­ed, otherwise, than by the mode of acqui­sition; as, this piece of land is A's. He purchased it. It was given to him. It came to him by descent. Indeed, to sim­ple objects of perception, whether substanc­es, or relations, names are necessary, but definitions are useless, and impract [...]cable. [Page 66] Nature has denied them, in every instance. The discovery, therefore, of simple objects, or simple relations, is not from reason, but intuition. This sense, though limited, at first, and, like the other faculties, subjected to a course of improvement, is discoverable in the early stages of life. The infant has, clearly, a sense of the right of property, though not of the modes of acquisition. He seems, before he is capable of conse­quential reasoning, as clearly to discern his right to his rattle-box, as the adult to his horse, purchased with his money, or his labor, and vindicates his property with as much apparent consciousness of that right. The perception extends, however, little farther than his own right; it can hard­ly be said to extend to the rights of others.

Many brute animals, to whom we have denied the powers of reason and investiga­tion, appear, evidently, to have a sense of property. Give a bone to a dog, he takes it boldly as his own. Let another attempt to rob him of it, he stands boldly in its de­fence, with a seeming consciousness of his right of property; while the aggressor ap­proaches with an apparent consciousness of guilt. The ox claims a right to his stall, and the dog, again, to his wonted corner. Instances have been given of a sense of this right in the ape, the beaver, the stork, and [Page 67] some other animals, which have not fallen under my observation. I, therefore, omit them. It would be strange if Providence had been less kind to man, than to the brute creation—man, to whom property is so extensively useful, and which, in a state of society, becomes the object or the instrument of most of his moral actions.

It was observed above, that the percep­tion is only of the right, or of the relation, which constitutes property, but extends not to the modes of acquisition. These modes, according to the state of society, may be very various. In the early stages of society, or, what is frequently called a state of na­ture, the objects of property, are almost as few, and the modes of acquisition nearly as simple, as among many tribes of the brute creation. The objects of property are only those things, which are barely ne­cessary to support existence. The modes of acquisition are, mostly, confined to prime occupancy, and some trifling pro­ductions by labor. The simple modes of gift and exchange are soon added. In the progress of society, men learn to apply to their use, either for their necessities, or their pleasure, most of the numerous productions of nature. By the assistance of art, as the powers of the mind expand, they vary, and multiply these, without end. In propor­tion [Page 68] as men enlarge their views of what is useful or agreeable, the hoarding appetite gains strength. They become eager of the present, and provident of the future. The objects of property become equally numerous with the objects of desire. In such a state, the modes of acquisition are greatly diversified, and are made the subject of a great variety of laws and regulations. The whole business of property now ap­pears to be an artificial system; but the modes of acquisition only are the subjects of artificial regulations. The right itself, of property, is substantially founded in the relations of nature, and is discovered by a natural sense, an intuitive perception. The business of acquisition, serves only to bring the subjects of property within the compass of those relations.

Here let me observe, that from this view of the right of property, we clearly discover, that it is not, as many writers have asserted, the creature of the civil law only. The consequences, therefore, which they have drawn from this position, "that on a dis­solution of government, all property is annihilated; and that every revolution of government, or radical reformation, is de­structive of the right itself of property," are by no means just. Civil protection only is lost. The security of enjoyment [Page 69] is endangered. The right itself, founded in the primary relations of nature, remains unchanged. But to return.

Without this perception, the right of property could be but weakly guarded by the moral sense. Were it a discovery of reason, a conclusion to convenience only, it must wait a considerable maturity of the reasoning powers. It must be wholly un­attainable to children; and, certainly, no persons, until they had, in one way or other, attained the perception, could feel any obligation of restraint. Force alone could prevent a constant violation of the rights of property. Prohibitory laws would be considered as so many arbitrary imposi­tions. How much better is the plan of Providence! Who can forbear to admire the wisdom and goodness displayed by the Author of our being, in thus adjusting the nature of man to that social and civil state, which he has ever found necessary, not only to his happiness, but to any tolerable existence in life? Deity has implanted in the nature of man, the germ of every ne­cessary qualification, and left to him the cultivation. More, it is probable, could not be indulged to a moral agent.

SECTION III. Of the Coincidence between Natural and Civil Liberty.

THAT Man, on entering into civil society, of necessity, sacrifices a part of his natural liberty, has been pretty universally taken for granted by writers on govern­ment. They seem, in general, not to have admitted a doubt of the truth of the pro­position. One feels as though it was tread­ing on forbidden ground, to attempt a re­futation of what has been advanced by a Locke, ^* a Beccari, ^† and some other emi­nent writers and statesmen. ^‡ But while we venerate them as men, who have ex­tended and improved the most important science, the science of government, we [Page 71] shall do them no injustice to suppose, that, in so vast a field of enquiry, they may have left some part not sufficiently explored. The revolution in America has opened new avenues to the science of government.

We have already seen, that the laws of nature, as they relate to man, are the laws of social nature; and that they have a par­ticular relation to the civil state. Indeed, it would be strange to suppose, that the God of all order, had, in the very nature of man, implanted the seeds of incongruity and contradiction. That from an undue culti­vation, which is the work of man, incon­gruities and contradictions should arise, is not a subject of wonder. The abovemen­tioned writers, and after them, the learned Judge Blackstone, ^* have asserted, that man, on entering into society, sacrifices a part of his natural rights, a part of his natural liberty, the better to secure the remainder. They speak of it as arising from the original laws of his nature, and the necessary nature of civil institutions. The position sounds very harsh, that, to the enjoyment of civil society, man must give up a part of his na­tural liberty; but it is always closed with this consolation, that, he, thereby, gains a greater security for the remainder, and is, in point of happiness, a great gainer by the [Page 72] exchange. The pursuit and attainment of happiness, is agreeable to the laws of man's nature, and dictated by them. If this be true, is it not sufficient to suggest a doubt, whether the state, in which that end is most perfectly answered, be not the true state of nature? Whether those natural rights, which are said to be given up, the principal of which, are, the right of judging in his own cause, and of taking satisfaction, or rather revenge, at his pleasure, are rights, which any man is qualified to exercise, in all cases, consistently with his own happi­ness, or that of others? Whether, in an unimproved state of society, the infancy of the human powers and faculties, an incapa­city of developing the whole laws of his nature, and consequently, of carrying them into full effect, these rights are not given to man, as a temporary provision of necessity? And that, when he is arrived at a maturity to be capable of civil combinations, and a better provision for carrying into effect the laws of his social nature, as far as such pro­vision can be made, they cease to the indi­vidual of course? ^* It surely affords a much more agreeable reflection to suppose, that, arising from human nature, taking in a capacity for improvement, which makes [Page 73] a part of the constitution, there is no such opposition between natural and civil rights. That, in some governments, men are de­prived of their natural rights, is true; but it is equally true, and equally comprehen­sive to say, they are deprived of their civil rights. Such governments, either in their constitution, or administration; from weak­ness on the one side, corruption or wicked­ness on the other, have deviated from the true principles of nature.

The Americans should know, from ex­perience, that little more is necessary to the discovery of the coincidence of natural and civil rights, than the removal of ancient prejudices, or to their reconcilement in practice, than the removal of powers and biasses not warranted by the laws of nature. From the progress, which has already been made, they have good reason to believe, that the weaknesses only, which are inci­dent to human nature, not any opposition of principles, prevent the attainment of this end in the highest perfection.

The Marquis Beccari speaks of a sacrifice of that universal liberty of action, common to all sensible beings, and limited only by our natural powers. ^* May not this liberty be as well predicated of a machine? When we speak of the liberty common to man, [Page 74] liberty, and a right to act, are convertible terms. Man has a natural, that is, a mere physical power, to injure both himself and others. But is a liberty to do this accorded to him by the laws of his nature? that is, a right to do wrong. Power, and liberty, are not of equal extent in signification. Power is, in a strict sense, that, by which we are enabled to exercise our liberty; not the liberty itself, when considered as a right. In a larger sense, it comprehends, both the right, and the power. Civil liberty is gen­erally taken in this sense. It will not be sug­gested, that liberty and moral obligation are at variance. I think, therefore, it will be more just to say, that, liberty of action, common to sensible beings, is limited by their natural powers, by the obligations of morality, in a word, by the laws of their whole nature. To give up the performance of any action, which is forbidden by the laws of moral and social nature, cannot be deemed a sacrifice.

It may be said, that all men have a right, individually, to pursue their own interest and happiness; and that, in the commerce of civil society, there will arise oppositions, which will, frequently, oblige one to sa­crifice his interest, or happiness, to that of an [...]ther. I answer, 1. The more men are found in a state of individual independence, and the less they direct their conduct by [Page 75] mutual laws, the more frequently, will such oppositions arise, and sacrifices necessarily be made, and that under circumstances of violence.—2. Man, as a being, sociable by the laws of his nature, has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.— 3. The laws resulting from the reciprocal social relations of men, dictate, that, when, from a want of foresight, or from the na­ture of the objects of pursuit, an opposition arises, there should be an amicable com­promise. Beyond this, nature may have given power, but she has accorded no li­berty, no right to man.

This is the true principle of all com­merce and exchange amongst men; of the accommodation of all civil claims and pri­vileges, and the mutual submission of pri­vate opinion to public sentiment. It is true, that men, in their private intercourse, often lose sight of this principle, and that, in public bodies, it is too much neglected. The interests of the minority, which, upon a right of mutual compromise, are entitled to a proportionable regard, are too often neglected, or wholly sacrificed to the more powerful interests of the majority. Still, the principle, however neglected, exists in the immutable relations of nature. If the neglect, or violation of any rule, natural, [Page 76] political, or revealed, were sufficient to prove, that it was not binding, that it was inapplicable, or that it was abrogated, what one rule would have remained for the con­duct of man?

Montesquieu, in treating of a subject, which led him to make a comparison be­tween a state of independence, the supposed state of nature, and a state of civil govern­ment, says, "Liberty consists in not being forced to do a thing, which the laws do not oblige. People are, in this state, only as they are governed by civil laws; and be­cause they are governed by civil laws, they are free. It follows from hence, that Princes, who live not among themselves under civil laws, are not free; they may continually force or be forced." ^* Sove­reign Princes are, in respect to each other, in what is called a state of natural inde­pendence. In another place he observes, "As men have given up their natural in­dependence, to live under political laws, they have given up the natural community of goods, to live under civil laws; by the first they acquired liberty, by the second, property." ^† However defective the above definition of liberty may be, it appears from these passages, that Montesquieu differed from [Page 77] other writers, in his opinion of the liberty enjoyed in the two states. He clearly sup­poses, that man, on entering into society, makes an acquisition of liberty, without any sacrifice; or rather, that he thereby secures, to himself, free from the danger of deprivation, by force, the common rights of his nature. If I am not deceived, what has been said in this section, proves the opinion to be well founded, and that all the rights of man are relative to his s [...]cial na­ture. They exist only in a coincidence with the rights of the whole, in a well ordered state of society and civil govern­ment.

When, therefore, we find an infringe­ment of the natural rights, or liberties of the people patronized by the constitution of the state, or admitted in the administra­tion, we ought not to excuse ourselves from searching the cause, and applying a reme­dy, under a persuasion, that the people, from a certain necessity of nature, consent­ed, in their civil compact, to sacrifice a part of their natural rights, the better to secure the remainder. At the same time, we ought to be cautious, how we disturb the happiness of the community, by an attempt to exercise those rights, which, in the infancy of society, an incapacity to discover, arrange, and give effect to the [Page 78] more general laws of social nature, were lent to man, as a provision of necessity only.

SECTION IV. Considerations on a Disposition in Man, to abuse the Powers of Government, with which he is entrusted.

THE question, whether Man be origin­ally depraved—whether a disposition to evil, a relish for vice, as such, be a part of his nature, in the present state, I leave to be discussed by the moralist, and the divine. I am, here, to consider his natural powers, his disposition and actions, as they relate solely to his political state. Moral writers have gone upon different, and opposite systems, respecting the origin of moral evil, and the natural disposition of man, as affect­ed to virtue and vice. Political writers have, uniformly, agreed. From Machiavel to Dr. Price, all have affected, that, in a political character, when entrusted with power, man is totally depraved, wicked, and corrupt; that the utmost perverseness, in power, is inherent in his very nature; that he is never good, but through necessity. [Page 79] Hence mutual checks, restraints, and oppo­sition of powers are found necessary to guard against the oppression of rulers.

This, if true, militates directly against, what I have all along been endeavoring to establish; that man, by the original consti­tution of his nature, is fitted for civil go­vernment; or, as I have elsewhere expressed it, that Deity has implanted in him the germ of every necessary qualification, for that state. Little, however, is man fitted for civil government, if no one is fit to be entrusted with the execution of its powers. Before we admit an opinion, which so much vilifies the nature of man, and would, if believed, almost tempt one to call in ques­tion the goodness of its author, let us can­didly consider the reasons, upon which the opinion is founded.

It is said, and truly, that every page of history is pregnant with instances of the abuse of power. The long line of Roman Emperors, with very few exceptions, were scourges of the earth. All the Kings and Nobles of ancient and modern times, not excepting the philosophic Frederick of Prussia, ^* have given full and convincing [Page 80] proofs of the danger of entrusting to men any degree of power, to be exercised in [Page 81] their own right, without controul. An effect so universal, it is said, must have a universal cause in the nature of man. All this is true; and yet I will venture, at the hazard of being thought singular, to dis­sent from the common opinion, respecting the real cause. I apprehend the effect is not so generally produced, by any maligni­ty, any culpable disposition in the nature of man; but that it is mostly the effect of situation. I do not doubt the universality of the effect, or rather, if you please, of the event, of a constant abuse of power, in certain situations. I doubt only of the cause. I think the cause is of a nature ve­ry different from that, which has usually been assigned. I suspect, that it is a little more complex, and, that it is the effect of other causes; some existing in the nature of man, others arising from the nature of the power, and the usual mode of betrust­ment. It will, perhaps, be thought, if the effect, in all the extent and uniformity con­tended for, be allowed, it is of little conse­quence, to the science of government, what the particular causes are. The same checks, the same opposition of powers, will be necessary, to guard against the abuse. But let it be remembered, that, in applying a remedy to an evil, little success can be expected, if the cause of the evil be un­known, [Page 82] or mistaken. It is much more eli­gible, where there is a possibility, to re­move or prevent the cause, than to be obliged to maintain a constant struggle against the effect, or to be perpetually em­ployed, in palliating, or diverting its ma­lignity. According to our different ap­prehensions of the cause, the remedy applied will be different, and the event more or less successful.

It must be remembered, that man is a complex being. He is by nature consti­tuted with a great variety of passions, ap­petites, powers, and faculties; senses, ex­ternal and internal, adapted to the percep­tion of objects, and relations, physical and moral. Some of these have a more imme­diate relation to his individual being and happiness; yet not so as to stand opposed to society. Others have a more immediate relation to society; yet not to the exclu­sion of self. He was not made for inde­pendence but for mutual connexion, mu­tual dependence, and to this, every thing in his nature is, more or less relative. On the right discernment of moral relations, either singly, or in their various combina­tions, arising from objects, situation, and circumstances, depends the justness of his moral perceptions; on marking the result with precision, depends the knowlege of his [Page 83] duty, a knowlege of the laws of his nature. He is, from the constitution of his nature, capable of impressions from an infinite variety of objects, both external and inter­nal. For the opperations of the mind, by reflection, become objects, and again have their impressions. These impressions give an equal variety to the modifications of his passions, appetites, powers, and faculties, not only singly, but in all their various combinations. The result of all these, constitutes the temper, disposition, and character of the man; and from the various modifications, arises, in some measure, the various influence of motives. Were man left in this situation, he would be the sport of blind impulses. There seems to be a necessity for a balance, as well as some ar­biter of moral action. The power of rea­soning, by which he combines, compares, distinguishes, and marks the result, has, by some ethical writers, been considered as being to man, the balance of his moral powers, and the arbiter of his actions. I think this is not the office of reason. Reason is rather the hand that adjusts the balance, limits and extends it, than the balance itself. However nice and meta­physical this distinction may seem, I pro­mise, that it will lead to some important consequences in the economy of man.

[Page 84]It may be asked, What is, to man, the arbiter of his actions? What the balance of his moral powers? I answer, The moral sense is, in all cases, the arbiter of moral action. Reason is an advocate, to argue, compare, and inform; but to conscience, or the moral sense, is left the ultimate de­cision. I believe every one will be capa­ble, of this distinction. The remaining part of the subject is, indeed, a little intri­cate. I do not despair, however of making it intelligible to those, who will attend to what passes in their own minds.

It was observed above, that man is a be­ing constituted with a great variety of pow­ers, faculties, passions, and appetites. These are capable, from various impressi­ons, to which the mind is subjected, of an almost endless variety of modifications and combinations, which furnish to mo­tives, different directions, and different degrees of force. To a being thus con­stituted, some balance, to prevent the ut­most capriciousness of conduct, and give him a command of any choice in his acti­ons, some constant regulator is necessary. A little attention to those faculties of the mind, which constitute the reasoning pow­ers; to their operations; to the manner in which they are affected, influenced, and biassed, by external impulses, or in­ternal [Page 85] combinations, will discover, that rea­son, instead of being qualified to serve as a balance, has, itself, need of a balance, a steady principal for its regulation. Na­ture, always equal to her wants, has provi­ded such a principle. This is a sense of accountability found in the breast of every rational being. Mention was made of this sense, in a former section; but I find it necessary to examine it with a little more attention.

Whether the sense of accountability be a distinct sense, a branch of the moral sense, or a certain state of the mind, produced by the moral sense, in a perception of certain moral relations, and in a view of certain objects, is not easy to determine. I am, however, inclined to believe the latter. In examining this principle of our nature, it will be necessary to keep in view the moral sense; the sense, by which we dis­cern moral relations.

Man has, as was observed in a former section, a passion, a desire, an appetite, call it by what name we please, for the appro­bation of others. He extends it to all in­telligent beings, whom he conceives to be, in any way, conusant of his actions; and its force is increased, or diminished, in pro­portion to the relation, or connection, in which he conceives himself placed, in re­spect [Page 86] to such beings. In the same extent, and in the same proportion he dreads their disapprobation, or censure. When the moral sense informs him, that his actions are right, he is conscious, that he deserves their approbation. On the contrary, when he has done wrong, he is conscious, that he is deserving of their censure. He is conscious to himself of a feeling of appro­bation, and disapprobation of the conduct of others, as he views it to be right, or wrong. Judging from his own feelings, and the expressions he meets in others, he rightly expects to find the same sentiments in all. Thus man finds himself bound to his duty by a three fold cord of accounta­bility,—to God—to himself—and to his fellow men. Thus the moral sense, and the sense of accountability, constantly operat­ing, though not exempt from the imperfec­tions incident to the nature of man, con­stitute the balance of his moral powers, and a steady principle for the regulation of his actions. Reason, by comparing circum­stances, marking the result, and detecting the impositions, to which all the senses, as well external, as internal, are, more or less liable, is qualified to adjust the balance. Here we may again observe, that neither the moral sense, the sense of accountability, or the reasoning powers, are given in per­fection [Page 87] to man. They are but plants in the germ, the growth and improvement of which is to be expected only from a proper cultivation.

I cannot but flatter myself, that the dis­tinctions, which I have endeavored to make, are intelligible, and the principles fully as­certained. By the assistance of these prin­ciples, we may, perhaps, be able to throw some light on the question concerning the origin of so universal an abuse of power.

The propriety of a man's conduct, will depend, principally, on a just discernment of moral relations, an accurate perception of what is right and what is wrong in moral action; on the means of informa­tion, the strength of his reasoning powers, and a full sense of his accountability, to his Maker, to himself, and to his fellow men. In proportion as there is a deficiency in one, or all of these, he will be exposed to a vi­cious conduct. Every deviation from right, by changing the force of habit to the weaker side, strengthens and confirms the bias. He, therefore, who, in life and ac­tion, would persevere in virtue, must be­ware, how he indulges any deception upon the moral sense, any bias, upon his reason, or a relaxation of his sense of accountability. Free a man from his sense of accountabili­ty only, he is left to the dominion of the [Page 88] passions and appetites, and driven precipi­tately into vice; as if, from a watch in mo­tion, you were suddenly to detach the ba­lance. That branch of the sense of ac­countability, by which man perceives his actions, of right, subjected to the approba­tion, or censure of his fellow men, is not the least efficacious in preserving the bal­ance of his moral powers. Yet this sense, so necessary to the moral being, may, as it re­gards mankind, be wholly suppressed, merely by the situation of the man. Place a man either above, or below the regard of mankind, and he will no longer feel himself accountable to them for his actions. He, who, in such a situation, can maintain the guard of his virtue, and successfully resist the solicitations of his passions and appetites; the covert approaches, and the open attacks of vice, is something more than human Such is the original adjust­ment of human nature, its parts, connec­tions, and dependencies, mutually sup­porting and supported, from which result the laws of moral action, that not a pin can be loosened, without endangering a derang­ment of the whole structure.

That political situation, which places a man, in any degree of independence on those, over whom he exercises a power, in the same degree cherishes the emotions of [Page 89] pride. It transforms that, which, before, was only a laudable contempt of what is low, mean, and unworthy the man, into haughtiness, under the name of grandeur. It excites a contempt for men, and sup­presses those sentiments, which subjected him to their approbation, or censure. Such has been, more or less, the situation of all hereditary Monarchs on the globe; of all aristocrats, and aristocratical bodies; of all men in power, who have had, or conceived themselves to have the ability of continu­ing their power, independent of those, over whom it was exercised; in a word, of all those, who hold their power in contempt of the people. A situation, not indulged to man, by the laws of his nature, and which Providence has, often, hitherto with little effect, warned him, by the pernicious con­sequences, not to entrust to any one of the race. The wonder is, not, that men, in such a situation, should have been guilty of so many vices, but that they should have exhibited even a few virtues. Could we strip the actions of Princes and Nobles, of the eclat of character, how few have been these virtues, we should be informed, in every page of their history.

Instances of constant and flagrant abuse of power, by men, thus situated, demon­strably prove, that it is dangerous to exceed [Page 90] the limits of our nature, to step beyond the reach of its laws; but they prove no ori­ginal malignity in man. In a different situation, within the limits assigned by the laws of human nature, men have adminis­tered the powers of government, with the greatest abilities, and the most exalted vir­tues, for the sole good of the community. May we not instance more than one ex­ample in the United States of America? In situations, in which rulers have held themselves fully accountable to the senti­ments of the people, for the exercise of the powers, with which they were entrusted, they have conducted with as much integ­rity and virtue as have been exhibited in the more private scenes of life. It must be allowed, indeed, that few such situations have yet been devised by political wisdom. When a people are capable of forming a constitution of government upon natural principles, and establishing a power of ad­ministration within the limits assigned to man by the laws of his nature, they will be secure against the danger of any exorbitant abuse. Care must always be taken to guard against all independence in the rul­ers, on the sentiments of the people, and to provide, that they shall administer, not their own power, but the powers of government.

If these observations be just, whatever [Page 91] human institutions may have done, nature has not disqualified man for any of the functions of civil government.

SECTION V. Of the Necessity of Civil Laws and Government.

AGREEABLY to the plan of the pre­sent Sketch, one question only remains for discussion. Whence arises the necessity upon man of adopting civil laws and gov­ernment?—As was before observed, some have thought, that the necessity arose from the perverseness solely of human nature. They assert, that men have, inherent in their nature, a relish for vice, an original propensity to evil; to restrain the maligni­ty of which, they were laid under a necessity of civil government; that true virtue, ge­nuine benevolence, would have led them, happily, through the most complicated scenes, which could have fallen to their lot in society. How the account stands between them and their Maker, it is not my present purpose to enquire. I shall only observe, that their civil and political [Page 92] conduct, does not avow a consciousness of such depravity of nature. They appear, in all cases, where no particular bias of passion or interest is discoverable, to have full reliance on the justice, integrity, and veracity of each other.

Some, who have had less gloomy views of human nature, have holden, that the necessity arises from the weakness, only, of individuals, requiring mutual aid, for sup­plying their mutual wants. This would, however, lead no farther, than the social state. It would not, alone, induce the ne­cessity of civil government. We have seen, that man, by his natural constitution, was intended for the latter state. We shall now find, arising from his nature, a neces­sity for adopting it; but a necessity of a very different kind from any thing, which has been suggested.

Men have a relish for society. It is the scene of their improvements, and the great source of their happiness. Still no goodness of heart can enable them to en­joy its benefits, without an establishment of laws.

Perception, conciousness, and volition, or those powers, which originate, and di­rect external action in men, belong to them, individually. A society consisting of any number of individuals, can have no [Page 93] common united perception, consciousness, or volition. Could this be the case, a so­ciety might will, and with a single act of voli­tion, direct, and controul the actions of all, and every member, with the same ease and regularity, with which an individual directs, and controuls the motions of his own body, and its members. But this is denied to man in the aggregate, and in e­very combination of society. The will of a society is made up of the individual wills of its members.

Had man been formed with faculties, which might have enabled him, with an intuitive glance, to penetrate, and compre­hend as they arise, the individual wills of all the members of the society, and of all, whose conduct, might in any way affect it; to penetrate and comprehend the passions, appetites, and pursuits, of every individu­al; in a word, to comprehend all the cau­ses, by which God governs the actions of moral agents; were he endued with rea­son, sufficient to arrange the whole, so as to prevent any individual interference; goodness of heart and firmness of mind, to enable him to pursue the arrangement; in such a state, both of knowlege and dis­position, he would stand in no need of civil laws, or rules prescribed by common consent, for the regulation of social con­duct. [Page 94] But such a state falls not to the lot of any finite being.

Our positive knowlege is, only partial, of the present and past, depending on act­ual and accurate observation. There is, however, given us some clue to the future. We are able to perceive certain relations of cause and effect. As far as experience leads, we find a uniformity in the course of nature. We discover some of the caus­es, and some of the laws, by which phys­ical effects are produced in a regular chain. Of others, we are wholly ignorant, or have, at best, but an imperfect glimpse. Much more imperfect is our knowlege of the causes, which produce and vary human ac­tions, subjected to the influence of motives, to the choice of the agent, and to those laws, by which they are governed in a train. In an extensive society, individu­als can have but a limited knowlege, even of the present actions of the whole. Their knowlege of the intentions and causes, up­on which the future actions depend, is much more limited. We are able to gain some knowlege of the leading principles of actions, of the motives which generally prevail, and the species of action, which they will produce, in certain characters, and in certain situations. To descend to every situation, every character, and thence [Page 95] to learn fully, the particular influence of motives and the individual actions, which will follow, in each, is beyond the reach of human sagacity. In a society composed of any considerable number of individu­als, and in a state of any considerable ac­tivity, there will be many, and very dif­ferent situations. The influence of mo­tives upon individuals, will be very dif­ferent. They will have a variety of dis­tinct interests, and pursuits, and those, not at all, or very imperfectly known to each other in their origin. However innocent and right, those interests and pursuits may be, when considered separately, they will, by frequent, though unintentional inter­ferences, and oppositions, form a scene too intricate for the powers of the human mind to evolve. Could we suppose every person in the society to be actuated, by principles of the most disinterested benev­olence, and the most accommodating spi­rit, the whole time must be consumed in compromise. None could be left for action.

Without a social perception, conscious­ness, and volition, with any goodness, and with any wisdom, short of infinite, the state of society would, at best, be a scene of inextricable confusion. To Remedy this confusion, nature has pointed out to [Page 96] man, the necessity of civil establishments, and the promulgation of laws. Here is a provision analagous to his nature. By the establishent of laws, which the individuals of the community have submitted to ob­serve, as the rules of their future conduct, they are enabled, with a sufficient degree of certainty, to foresee the future interests and pursuits of each. By following the line prescribed, they can avoid every con­siderable interference, or by applying the rule, may remedy the inconvenience. In no other way, is it possible to connect a community, either in sentiments, or inter­ests; to unite the public force; to direct it to the attainment of any common good, or to the avoiding or repelling of any com­mon evil. In no other way is it possible to give any security to public or private rights.

Still men are imperfect. They will be guilty of deviations from the rule, trans­gressions of the law, and infringements of each other's rights. This will happen, some times, thro' ignorance of the law, or of the right; an ignorance, which arises from weakness in judging, or inattention in ex­amining. Sometimes, it will happen thro' the prevalence of interest, or the violence of passion. Therefore, to give the laws a compulsory force, and to secure a general [Page 97] observance, they must be so calculated, that every member of the community shall find a convenience, in the observance, and a certain inconvenience, in the neglect or violation. Hence arises the necessity of penalties. These penalties are, from the weakness of men in discerning tendencies, and their consequent liability to vice, ne­cessarily enhanced. Hence also arises the necessity of subordination, and of civil rul­ers, to give activity and efficiency to the laws. In a state of greater perfection, than is to be found, in the present state of socie­ty, a greater perfection of knowlege and virtue, penalties may make a less formidable appearance; but, in every state, the ne­cessity of penalties will equally exist.

In a community composed of a few in­dividuals, in a simple state of manners, and of property, the motives to action are few; consequently, there is little activity of individuals. A few simple rules, mostly adopted and supported by custom, and frequent consultations, upon present emer­gences, supply the place of a more regular polity. They are the first rude essays in civil institutions. Still, in every state of morals and manners, a necessity of known and established rules equally exists. On the whole, we may safely conclude, that no order of beings, short of infinite per­fection, [Page 98] in wisdom, as well as goodness, can subsist in society, without an establish­ment of government and laws.

SECTION I. Different Degrees of Improvement introduce different Forms of Government.—A source of false Reasoning.— Brief View of the Rights of Man.—An Inaccuracy of Mr. PAINE, in treating of this Subject.

ALL our reasonings, drawn from the nature of man, induce the most satisfactory conclusion, that he was intended for socie­ty, and coincide, in the largest sense, with the divine enunciation of his Maker, "It i [...]not good, that man should be alone." [...]easoning from the same source, it is equal­ly clear, that he was intended for civil government, and laid under a physical necessity of adopting it. Men have gene­rally been struck with the necessity, long [Page 99] before they were able to discover, and ar­range those laws of their nature, which lead to a safe and happy establishment, upon natural principles. It has passed into a proverb, that any government is prefera­ble to anarchy—a state of individual inde­pendence.

The general circumstances and manners of the age have prevailed to general estab­lishments, in forms of government. The general circumstances and manners of a people, have prevailed to particular estab­lishments. In the very early stages of society, while simplicity in manners, in knowlege, in wants, and in means, prevails, there is, always, a great degree of equality among men. The passions, which, in some of the following stages, lead to inequality, rarely exerted, hold, nearly an equal tenor. Every thing is enjoyed in common. This state is a kind of natural republic, suited to the infant state of humanity. It has been observed, that this is a state of na­ture; but the nature of man points him to improvement. A perpetual continuance of a nation in this state, would be as un­natural, as perpetual infancy to an indivi­dual.

In the progress towards maturity, the avenues to knowlege are discovered, by circumstances, accidental to man. He [Page 100] cannot, from the limitation of his powers and faculties, proceed on generals. His progress is in particulars. One discovery opens an unexpected avenue to others. Proceeding thus by particulars, it is clear, that the progress of knowlege must be slow, and the views exhibited to the mind neces­sarily partial. Objects, in the progress, arising singly, and surprising by their no­velty, have a powerful effect upon an un­improved mind. Accordingly the few passions, which they are calculated to ex­cite, are powerfully inflamed. The moral sense, and the reasoning powers can never be in advance. They, necessarily, pursue at a distance. Such is the progress to im­provement; such the boisterous youth of humanity; such the difficult passage from ignorance to the knowlege of truth, through a wilderness of errors. Hence the moral balance is, frequently lost, and a violent state of the passions, which gives a peculi­arity to the manner [...], succeeds. Both the vices and the virtues are more prominent. There happens a frequent change of man­ners, but seldom for the better. The change arises from the prevalence of one kind of passion or appetite, and a succes­sion of different objects of gratification. It is a change from one mode of violence to another. Violence is still the great [Page 101] characteristic. Hence, we find a resemb­lance of monarchy and aristocracy, in the passions. In this state of society, men al­most unavoidably, fall into a monarchy, or an aristocracy in government; institutions of violence, for the restraint of violent passions.

Men proceeding, gradually, in improve­ment, though, with frequent digressions, and retrogradations, to what may be called a state of social manhood, the natural pas­sions, from a more general acquaintance of the mind with objects, are brought more equally into exercise, and form a mutual check on the violence of each other. The reasoning powers, by constant and exten­sive employment, acquire acuteness, com­prehension, and strength. The moral sense, and the sense of accountability, ac­quire a greater degree of ascendency. It is perceived, that happiness consists, not in excess, but in equable enjoyment; and, that the violent indulgence of one passion, excludes the gratification of the rest. Hence proceeds a moderation. In this state, there is more gratification, and less violence. The happiness, which men experience, in social intercourse; a more extensive know­lege of the original constitution, and desti­nation of their being, and the harmony of general laws, thence resulting, open a new [Page 102] scene in society, and prepare them, in a good measure, to rejoice in a reciprocation of rights, and a mutual compromise of interests.

Such a state of society and manners, gives a more general operation to the laws of social nature, which I have endeavored to elucidate, and suggests the establish­ment of government upon the sure basis of natural principles.

Is it not probable, that certain degrees of improvement, in science, in morals, in manners, and sentiments, will tend to an abolition of every other form of govern­ment; and to the establishment of Demo­cratic Republics, ^* in which alone, we have reason to believe, from the observations made above, natural principles can have any general operation? Not, indeed, be­cause such a state will directly suggest these principles; but it will lead the people to a discovery of their rights as men, and the abuses, which they have suffered from ar­bitrary, and tyrannical impositions, conti­nued from institutions, which were provi­sions of necessity during their pupilage. Such a discovery will lead them to a dis­cussion of original principles, and suggest, as the only means of securing a free and [Page 103] equal enjoyment of their rights, the neces­sity of placing the exercise of the powers of government, within the limits, which the God of nature has prescribed.

In a different state of society, before men had arrived at these general and equal improvements, an impatience under all restraints, added to frequent oppressions, has suggested a wish for popular govern­ment; but whenever, in this state, it has been introduced, the violence of the pas­sions, manners and sentiments, have ren­dered the government violent, fluctuating, and almost constantly tending to its own dissolution.

By tracing into exercise, in governmental establishments, those principles, which have been discussed in the preceeding Sketches, and marking their operations, we shall be able to discover their coincidence with the rights of man. We may, like­wise, be able to discover and prevent the admission of principles, which are not de­rived from the constitution of nature, but have their origin, in adventitious circum­stances; in ignorance, violence, or cor­ruption.

The science of government has shared the same missfortune, which has so much perplexed the science of divinity, and the science of morals. Men have generally began the two latter, where they should [Page 104] have ended them. ^* For many centuries divines and moralists assumed at pleasure, attributes and counsels for deity, accord­ing to the systems which they were enga­ged to support; and from what he ought to do, according to their various assump­tions, determined what he has done, and what he will do, in the moral government of man. The great truths of religion and morality have been subjected to their opin­ions. Had they, instead of reasoning from their assumptions, a priori, began with man, and the things which have been made, and from what has been done, and is still doing, in the natural and moral world, searched for the creator, they might have prepared the way for some knowlege of God, his attributes and moral government, and as far as it concerns man, have caught some glimpse of his coun­sels. ^†

[Page 105]In the science of government, politi­cians, in like manner, universally began with the Rulers. For them they assum­ed all power, all right, and transferred all duty to the part of the subject. Agreea­bly to their doctrines, every enjoyment on the part of the subject, was an indulgence flowing from the clemency of the Prince. They have considered, that he was the source, the sole proprietor of all right, of all honor, of all justice; and dealt them out to the subject at his sovereign pleasure.

The revolutions, which have happened, among the nations of the earth, in know­lege and in government, have, by degrees, opened the eyes of mankind. They have, in some instances, learnt, and have even dared to assert, that all legitimate govern­ment is founded in the rights of the peo­ple; that it is an institution for their con­venience and happiness; that the ruler has no right as a man, beyond that of ev­ery individual; and that the power, which he exercises, is not his power, but the pow­er and right of the people, entrusted for their benefit. A ruler may be a benevo­lent man. He may discover his benevo­lence, in the exercise of the power, with which he is intrusted. It may give a lus­tre to his character, a facility to his ad­ministration, and render him more worthy [Page 106] of the trust. But he can never indulge to the people a right, of which they are not the original proprietors. The time seems to be at hand, when, among many nations, the clemency of the Prince will become as contemptible, as the dispensing pow­er of the Pope, and will be deemed equally an insult on the common sense of mankind.

Before we proceed to treat of the or­ganization of government, it may be ne­cessary to take a summary view of those rights of man, to secure the free, equal, and legitimate enjoyment of which, is the principal object of civil institutions.

I shall take the liberty to use the words of Mr. Paine, to which I shall add a short comment of my own:

‘Natural rights are those, which ap­pertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind. And also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those, which appertain to man in right of his being a member of society. Every civ­il right has some natural right preexist­ing in the individual; but to which his individual power is not, in all cases, [Page 107] sufficiently competent. Of this kind are all those, which relate to security and protection.’

He then goes on to distinguish between the natural rights, which man retains, after entering into society, and those, which he deposits, according to his view, in the com­mon stock, as a member of the society.

‘The natural rights, which he retains, are all those, in which the power to ex­ecute is as perfect in the individual as the right itself: Among this class are, as is before mentioned, all intellectual rights, or rights of the mind; consequently, Religion is one of those rights. The natural rights, which are not retained, are all those, which, though they are perfect in the individual, the power to execute them is defective. They answer not his purpose. A man has a natural right to judge in his own cause; and so far as the right of the mind is concerned, he never surrenders it. But what avail­eth it him to judge, if he hath not the power to redress? He therefore depo­sits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and ad­dition to his own arm. Society grants him nothing. Every man is a proprietor in society, and draws on the capital, as a matter of right.’

[Page 108]These observations are, in a general view, excellent. They are not, however, in every point, just. Mr. Paine's genius does not, always, admit of accurate reason­ing, either in discovering principles, or in tracing consequences. But what is often of more value, he seizes his object by an intuitive glance, and is generally happy in exhibiting it to others in a striking point of light.

The business of judging is relative to the rights of justice, and comes in for the sake of those rights. Men have, reciprocally, a right to demand justice of each other, and are reciprocally bound, in duty, to make an adequate satisfaction for injuries. The right of judging amounts to a right of de­ciding, what is just between one individual and another; a right of determining, what satisfaction ought to be made for in­juries, and in what manner. The judge is equally bound to judge justly. But, such we know, for a general rule, is the nature of man, that he is incapable of judging justly, that is, impartially, in his own cause. In all matters, which depend on a right of mutual compromise, he is the only judge of his own interest, and an actor in his own cause. In repelling present injuries, a pre­sent invasion of his own rights, he has a right to judge, both of the means, and the [Page 109] measure of defence; and this from necessi­ty. But he must judge rightly, that is, agreeably to the occasion, at the peril of becoming an aggressor. The right is not independent, and without appeal.

There is, therefore, a deficiency in point of capacity to judge, as well as in point of power to execute. From a little consider­ation, it will be evident, that this right of judging in his own cause, is a temporary right, entrusted to man from necessity on­ly, until he shall have arrived at a maturity to be capable of comprehending and car­rying into full operation that law of his nature, which makes him accountable to the judgment of others, and which dictates, in all controversies, a submission to an im­partial judge. Every one, as well the party injuring, as the party injured, has a right to an impartial and just decision; and na­ture has pointed out the means of obtaining it. The right of justice is perpetual. The right of judging, with a view of compel­ling satisfaction, is only incidental, and comes in, lest there should be a failure of the former. When men become capable of providing for a regular administration of justice in government, that right, which was designed to be temporary, so far as such provision is made, ceases of course. It cannot be said, with propriety, to be [Page 110] given up, by any act of the individual, or thrown into the common stock of society. Such rights may, as it respects society, be well denominated juvenile rights. In the progress of society towards maturity, the same thing happens to these rights, which happens to the juvenile passions and appe­tites of an individual. Many little passions and appetites exist in infancy, and in early youth, which, though proper and necessary to that state, are nevertheless unbecoming the state of manhood. They are never given up, by any specific act of the mind, but agreeably to the constitution of nature, they give place, in the progress of the in­dividual, to passions and appetites proper and necessary to an advanced state, and one after another become extinct.

I am apprehensive that the legal notion of the necessity of a consideration to the validity of a contract, first introduced, or at least, has supported the opinion, that men, on entering into society, give up a part of their rights, as a consideration for the security of the remainder. Writers on government have been anxious, on the part of the people, to discover a considera­tion given for the right of protection, and the right of justice. While government was supposed to depend on a compact, not between the individuals of a people, but [Page 111] between the people and the rulers, this was a point of great consequence. But it can be of no consequence, when it is un­derstood, that government is produced by the individuals entering into a compact among themselves for that purpose. We have no occasion to look for any considera­tion for the duty of obedience to the laws, on the one side, or, an equal and just admi­nistration, on the other, but the inviolable obligation arising from the laws of social nature.

Nature has pointed out civil government as a mean, not an end; a mean of securing the greatest quantity of happiness to all, with the least possible inconvenience to individuals. Formed as man is by nature, for society and civil government, he is in a solitary state, or a state of independence, too emphatically, called the state of nature, excluded the benefit of most of the laws of his nature; the free enjoyment of al­most the whole of his natural rights, ex­cepting those, which are connected with his individual existence.

The greater part of his rights are not exclusively, and independently, in himself. They arise in society, and are relative to it. Antecedently to that state, they could exist only potentially. The rights of all have a reciprocal relation to the rights of each, [Page 112] and can never be rightly apprehended, distinct from that relation. Those rights, which Mr. Paine calls the natural rights of man, are more independent, more im­mediately united to his being, like the con­sciousness of his individual existence. — Those, which he calls the civil rights of man, are the children of his nature, the issue of the social union, to which he is di­rected, invited, and impelled, by the laws of his creation. Both are natural rights, and equally guaranteed to him by the laws of his nature. The difference is, that those which he calls natural rights, are independ­ently perfect, and the enjoyment full in the individual. Those, which he calls civil rights, are relative. They arise from the union of men in society. The more perfect the union, the more legitimately natural are those rights, and the more full the en­joyment.

That society, in the administration of right, grants nothing to any of its members; that every man is a proprietor, and draws on the capital, as a matter of right, is one of those high and immutable truths, which are allowed to be taught, in their full ex­tent, only in a democratic republic. In a monarchical, or aristocratical government, the very thought would be deemed a spe­cies of treason.

SECTION II. Few Governments formed by an actual Com­pact.—Instability of ancient Governments— Social Compact in the Formation of a legi­timate Government.—Civil Powers.— Division and Limitation.

FEW governments, ancient or modern, have been constituted by an actual com­pact among the people. The powers of government, have, in most instances, been blindly conferred upon one, or a few indi­viduals. They have been assumed by fraud, or violence; or through a succession of ages, have been suffered to accumulate in certain families, and become sacred in their hands. Thus the powers of govern­ment came to be considered, as the right and privilege of the rulers, inherent, dis­tinct, and paramount to the rights of the people. Men have conducted as though whatever of right, whatever of good was enjoyed, by the subject, was to be derived from the condescension of rulers, a mere concession of clemency. Doctrines like these have, in all ages, by the interested po­licy of the ambiti [...]us few, been artfully, and but too successfully inculcated on the people. From this source has been deriv­ed [Page 114] the doctrine, of the present perfection of government, the infallibility of rulers, and the divine right of Kings.

On the other hand, the people, from a dread of the horrid oppression, which uni­versally, accompanies such absurd concep­tions of power, have, at times, plunged into the extremes of anarchy and popular violence. They have been driven to a feeling, rather than a rational investigation of their rights. They have found it diffi­cult to distinguish clearly, in the exercise of power, between a personal right, and a mere betrustment. They have found it still more difficult to establish any laws of accountability, which might operate to prevent a constant abuse, without a con­stant resort to violent measures. Thus embarrassed, they have frequently balanced between the horrors of tyranny, and the licentiousness of faction. Hence were ex­perienced, at Athens, at Rome, and in many other governments, perpetual vibra­tions between the violence of the rulers and the violence of the people.

Neither the Greeks nor the Romans had any accurate notions of liberty, and the natural rights of man; of those rela­tions, from which result the sacred laws of his nature. From the ignorance of their lawgivers in these points, which was, indeed, [Page 115] the ignorance of the age, there were always radical defects in their governments. In all their systems, they made little or no distinction, between the laws of the con­stitution, by which the state is organized, and its efficient powers directed and limited, and the laws of property and personal rights. And yet, without a nice attention to this distinction, liberty can never be permanently secured.

An examination of the various consti­tutions of government, which have existed, or still do exist in the world, falls not di­rectly within my present plan. My design is to attempt a sketch, only, of the consti­tutional principles of government; as founded in the principles of natural law, in the moral and social nature of man; and to point out the general operation and tendency of these principles in exercise.

Whenever men happen in society, they, naturally, and from an unavoidable neces­sity, the nature of which has been ex­plained, fall into some kind of govern­ment. Nature, however, produces few things in perfection to man. Much is left to his choice, and the improvement of his rational powers. Whatever may have been the mode of originating and establish­ing government, in the infancy of societies, and of knowlege, it is now, in every free & [Page 116] enlightened nation, admitted as fundamen­tal, that all legitimate government origin­ates in the free consent of the people; that to produce a rightful government, the peo­ple, among themselves, must enter into a mutual compact for that end. Not that we are to suppose it necessary to its validity, that each individual, in the proposed com­munity, should consent to every article of the compact. Men are by nature social beings. In determining the mode, in which any people shall enjoy the benefits of their social nature, it is clearly a princi­ple of natural law, that, upon a fair discus­sion, the minority, if they choose to con­tinue within the limits of the society, shall be bound by the decisions of the majority.

In the exercise of this right of free con­sent by the people, agreeably to the prin­ciples now laid down, constitutions of gov­ernment are formed. The constitution is no other than the fundamental laws made and ratified by such compact, for the pur­pose of organizing the government, and establishing the necessary powers. The intent of these laws is to direct, in what manner, and to what end, the constituted powers shall be exercised; how those, to whom the exercise is entrusted, shall be holden accountable; and to limit those powers, by precisely marking the rights, [Page 117] which are inherent, and unalienable in the social nature of man, the mutual enjoy­ment and exercise of which does not inter­fere with individual rights, or obstruct the due exercise of the powers of government, for the common good. This has been found necessary, not because the people are presumed to have submitted to the consti­tuted powers every right, not expresly re­served, but because it has been found diffi­cult, if not impossible, to mark the powers themselves, with precise, unequivocal li­mits.

The laws of the constitution, as Mr. Paine has justly observed, are to the govern­ment what the laws made by the govern­ment, that is the civil laws, are to a court of judicature. A court of judicature is bound by the laws, but has not the power, either to make or alter them. In like manner, the government, that is, those or­ganized bodies, who are entrusted with the powers of government, are bound by the constitution, but have no power, in them­selves, to make, alter, or control, any of its laws.

The necessity of laws, for the happy re­gulation of social and civil intercourse, has already been observed. In a scene, where there is a complication of rights, to be re­conciled and secured, a great variety of [Page 118] passions, to to be restrained and directed, the necessity of constitutional laws, agree­ably to which the powers of government shall be exercised, are no less obviously necessary.

The constitutional laws ought to have a certain relation to the laws of na­ture, and to be founded in principles deri­ved solely from those laws. From the same source are to be derived the opera­tive principles, of the constituted powers, and those principles, by which they are limited, restrained, and directed to the ends of their institution. To give activity to these powers, the constitution ought to designate, not the persons, who shall be en­trusted with the exercise, but the mode of their appointment, and in what manner they shall be amenable for their conduct in the administration. From the manner in which the constituted powers are exer­cised, and the immediate objects of their exertion, naturally arises a division into a legislative, executive, and judiciary. It is the business of the legislative to form such laws as may, in a due proportion, di­rect the actions of the whole, to the pur­suit of public measures, and interests; as may unite the forces of the community, and direct them to the attainment of those important objects of public utility, or pub­lic [Page 119] necessity, to which the united force of the whole is alone adequate. It is their pro­vince to enact such laws, for the regulation of individual conduct, as may prevent an interference of individual claims and in­terests, and secure right and justice to the citizens in their private intercourse. Un­der the same head comes a provision, for the ascertainment and reparation of inju­ries, whether public or private, and for securing a general observance of the laws, by adequate sanctions, by penalties to be inflicted for every neglect or violation.

The business of the judiciary is to de­cide on the laws, by interpreting, and ap­plying them to particular cases, and to give precise information, upon whom, in what degree and manner, and to what purposes the executive power shall be ex­ercised, either for the reparation of injuries, or the punishment of offenders.

It is the business of the executive to car­ry into effect, the decisions of the judiciary, in the manner prescribed by the legislature, and the constitutional laws. To this branch it belongs, in like manner, to carry into effect many regulations, both of the legis­lature and of the constitution; and to rep­resent the individuality of the community in public transactions.

[Page 120]There are very obvious reasons, why these powers should be committed to sepa­rate departments in the state, and not be entrusted unitedly to one man, or body of men. Different abilities are necessary for the making, judging, and executing of laws. They require the exercise of differ­ent powers, faculties, and knowlege. No one man ever had a sufficient extent of a­bilities, or versatility of genius, to attend to the duties of all, at one time, or in a quick succession. Such a union must fre­quently occasion a confusion of principles, and remediless violation of rights. To commit their exercise to a single man, or body of men, essentially constitutes a mon­archy, or aristocracy, for the time being. By giving them the power of avoiding all constitutional enquiry, it places them a­bove a sense of accountability for their conduct. They have it in their power, eith [...]r in the enacting, the interpretation, or the execution of the laws, to skreen themselves, and every member of their bo­dy, from account or punishment. The situation itself suggests to them, views and interests, different from those of the peo­ple, and leaves no common judge between them. It places them, in respect to the people, in that state of independence, which is often called a state of nature. In [Page 121] such case, the people, hopeless under op­pression, sink into a state of abject slavery, or roused to a sense of their injuries, assume their natural right, in such situation, op­pose violence to violence, and take exem­plary vengeance of their oppressors. In a government so constituted, the frequency of elections, can only aggravate the evil. The rulers, with all the powers of govern­ment in their hands, will find every instru­ment of corruption and factious violence devoted to their service. They will always have a hope of continuing themselves in administration. Should there happen a change of men, a change of measures, if attempted, would be of short continuance; the same situation, and the same motives, would, sooner or later, produce the same fatal effects.

To enter on a public investigation of the conduct of their predecessors, would be to set an example against themselves. ^* In such a confusion of powers, should any regular attempt be made to call the rulers to account, the immediate agents, and the immediate causes of the evils, would prove of difficult investigation. Mutual recrimi­nations and powerful intrigues, would [Page 122] generally divert the enquiry from the pro­per objects, and devote only the innocent or the feeble to the vengeance of the law.

A separation and precise limitation of the legislative, judiciary, and executive powers, with frequent, free, and uncor­rupted elections, is the only remedy for these evils. Those who exercise the legis­lative power, must be subjected to their own laws, and amenable for a violation, equally with the plainest citizen. They must, by the express provision of the con­stitution, be confined to the consideration of general laws, and forever excluded the right of enacting particular penalties, pri­vileges, or exemptions. Such partial laws are the first beginnings of an attack on the equal rights of man, and a violation of the laws of nature. This provision, however, should not extend to prevent the establish­ment of companies, by act of legislation, for the purpose of transacting certain busi­ness, or of prosecuting certain enterprises, to which the powers of individuals, from the nature of the thing, are incompetent. In the establishment of companies for such purposes only, a new power is created, but the right of no individual is infringed. Neither should it extend to a prohibition of forming laws for the encouragement of useful knowlege. Authors of books, by [Page 123] which useful knowlege is disseminated, and of those inventions, which facilitate the labors of life, are entitled to the fruit of their own industry, and of the applica­tion of their powers, equally, with other citizens. But such is the nature of their productions, that, without a legislative in­terference in their favor, they must remain wholly at the mercy of others.

The legislature may proceed to the de­claration of tyrannical laws; the judiciary to the pronouncing of unjust decisions; the executive furnishes the immediate in­struments of tyranny and injustice. The executive is, in all cases, the ultimately efficient power. It is, therefore, very ne­cessary, that the executive should be limit­ed, with as much precision, as the nature of the power will permit, and the acts of all its ministers, rendered as conspicuous, as may possibly be, or, at least, of easy in­vestigation, and the ministers themselves made amenable to the ordinary, or consti­tutional tribunals, for every abuse.

To prevent both legislative and execu­tive abuses, the intervention of an inde­pendent judiciary is of no small importance. To the judges, the ministers of this power, it belongs to interpret all acts of the legis­lature, agreeably to the true principles of the constitution, as founded in the princi­ples [Page 124] of natural law, and to make an impar­ [...]al application, in all cases of disputed [...]ght. By this provision, the rights and [...]terests of the legislative and executive branches will be kept in union with the rights and interests of the individual citi­zens. All will be equally exposed by the same unjust laws, or amenable for an arbi­trary execution. The members of the le­gislature, cannot, from the nature of their functions, be amenable, in their legislative character, to any tribunal, but that of public sentiment. The case is different with the members of the executive and ju­diciary. They may, with propriety, be subjected to trial, for a violation of their trust, at the bar of a constitutional tri­bunal.

It may be observed, that a separation, and precise limitation of the powers of go­vernment simplifies the duties of its minis­ters. All their acts are, thereby, rendered distinct. Enquiry is facilitated, and abuses readily traced to their criminal causes, the particular agents. In addition to this, it gives a degree of energy to the public sen­timent. Public approbation and censure. when directed to a number of men, of whom some are known to have acted well, or ill, but the particular agents are con­cealed, lose much of their force. The [Page 125] guilty hide their blushes in the crowd. Guilt, or rather the sense of guilt, is dimi­nished in proportion to the number of as­sociates.

The better to secure the accountability of the individuals in the great departments of the government, not only ought the powers of the several departments to be, precisely, and distinctly, limited; but the several members ought to be incapable of holding a place in more than one of the departments, at the same time. The mem­bers of one department may be eligible to a place in another; but the acceptance of the latter ought to vacate the former. A separation into distinct bodies, will be of little avai [...] if those bodies may be composed, principally, of the same individual mem­bers. The division and limitation of pow­ers, will, in this case, be merely matter of form. They will remain, substantially, united.

If the above observations are well found­ed, the executive branch ought not to have a negative, or any directing power, in the act of passing laws. The executive may, however, within certain limits, well have a deliberative voice. Those, who are con­versant in the execution of the laws, will be the centre of information upon that subject. They will, more readily than [Page 126] others, foresee any difficulty, which may arise in the execution. Of such informa­tion the legislature ought to be availed.

The same observations, nearly, will hold true of the judiciary. The judges, from the nature of their official employment, are informed of the difficulties, which arise in the interpretation of the laws, and of those cases, in which they prove deficient, un­equal, or unjust in their operation. Such information is highly necessary to the le­gislative body. The principal members of the judiciary, may, when the particular duties of their office will permit, be, with propriety, united with the head of the exe­cutive department, to form a council of revision upon all laws proposed to be passed by the legislature. The business of this council should be confined, solely, to ob­jections. It should be their duty to give information of all difficulties, which they foresee will arise, either in the interpreta­tion, the application, or the execution of the law; and to notice all inconsistencies, either in the laws themselves, or as they relate to the principles of the constitution. They should be allowed, in no instance, to propose any amendments, or to make any leading propositions, in the enacting of laws; but simply to state to the legislature, such objections, as they find to any law, with their reasons in writing.

[Page 127]The information to be derived from this source, may enable the legislature to give a regular consistence to the laws, and a faci­lity to their administration, not otherwise to be expected. Still, the legislature must be the sole judges, whether the informa­tion given coincides with the general inte­rest of the community, and the principles of the government, or is dictated by parti­cular views, or particular interests.

SECTION III. Of a Balance constituted by an Opposition of Powers.— Locke's Constitution of Caro­lina.—Of other Checks.

MOST of the political writers of mo­dern times, who have had any idea of a free government, have contended for a division of the legislative power. They would have, in the legislature, one body of men, representing the commonalty; a senate, representing the wealthy and more honor­able part of the community, and the head of the executive, whether King, President, or Governor, representing the individuality or sovereignty of the state. These bodies, [Page 128] for the purpose of maintaining an exact balance of the several interests in the state, are to have a mutual negative in passing all laws. The balance is to be supported, and the happiness of the people secured, by a mutual opposition of rights, interests, and powers.

Before we proceed to the head of Elec­tions, let us attend, carefully, to examine this point.

To admit the necessity of such a balance, is to admit, that the laws of nature have indulged to certain classes of men different rights, and given them distinct interests in those rights, and that the maintenance of such rights, and interests, distinct, and in­violable, is indispensibly necessary to the happiness of the whole. This position is, upon our principles, wholly inadmissible. There are, indeed, inequalities among men. Some are stronger than others. Some have greater powers of mind. Hence proceeds an inequality of acquisitions, both in power, and in property. The strong have it in their power to trample on the weak; the cunning, to circumvent the simple. But will any one pretend that they have a right to do this? The rights of acquisition are equal and common to all. The laws of natural justice have laid it under this restri [...]tion, so use your own [Page 129] right, that you injure not the right of ano­ther. ^* My right of property, which ori­ginally, depends on my right of acquisi­tion, is not injured, because my neighbor, by the application of greater abilities, or industry, has brought more of the goods of fortune within his right. If the law should give him a monopoly of riches, of power, of honor, and secure them to him in perpe­tuity, against my claims of justice and of merit, it would be a diminution, an unjust violation of my right. These are the dar­ling principles of monarchy and aristocra­cy. Men are capable of these principles. They are capable of many vices. The former contribute no more to perfection in government, than the latter in moral conduct. It is, surely, much better, in the formation of a government, to prevent their very germination, than to maintain a constant struggle against their evil tend­ency.

In Great-Britain, the balance of power, in three branches, preserves, what of liberty is to be found among the people. That government consists of a monarchy, an aristocracy, and a democracy: that is, two powers, with distinct, and exclusive rights. These rights, as far as they are claimed to extend, place the claimants beyond the [Page 130] reach of one branch of the laws of nature, the law of accountability to man. If these orders have been established in a state, and are to be supported, they must be placed in an equal balance. Power must be op­posed to power; authority to equal author­ity, as a mean of self-defence in each. The prerogative of the crown, and the pri­vileges of the nobles, are ingrossments on the rights of the people. They are heredi­tary, and deemed to be inherent in the very blood. Their honors, their privileges, and their crimes, as rulers, and as men, are held to be above the judgment of the people. The powers of the monarch, and of the nobles, which are exercised upon the same subject, the people, often interfere. The restraint of one, is the enlargement of the other. Both are equally out of nature. It is rightly considered as a matter of in­difference to the people, who has the exer­cise. Their claims of right and of power are placed in opposition; and mutual en­mity is the natural consequence. Every compromise of their interests, every tempo­rary union of their powers, is a conspiracy against the people; who, at times, are justly provoked to assert their injured rights, against the usurpations of both. As the rights of the monarch, and of the nobles, are hostile to the rights of the people, the [Page 131] people are naturally and justly enemies to both [...] [...] thus there is constituted in the government, a perpetual war of each against the other, or at least, an armed truce; a truce attended with constant ne­gociations and shifting combinations, to prevent mutual destruction. Each party, in rotation, unites with its enemy, for mu­tual defence against a more powerful ene­my.

The history of the English government, from William the Conqueror, down to the present time, is an incontestible proof of these truths. It is little more than the history of the usurpation of the king, and the nobles, upon the rights of the people; struggles between the king and the nobles, for the greatest share in the usurpation, and the opposition of the people to both. What a scene of treachery, faction, and all the horrors of civil war, the legitimate off-spring of such a government, does their his­tory constantly exhibit to our view! From the improvement of the social virtues, these contests have, indeed, lost much of their ferocity. They have assumed a milder tone. What was formerly attempted by open violence, is now effected by the more silent, though not less fatal means of cor­ruption. It is, as the pestilence that walk­eth in darkness succeeding to the destruction which wasteth at noonday.

[Page 132]The democratic branch, the representa­tives of the people, are the depository, and from their interest, the sole guardians of the rights of the people. But with these, from a fatality attending the nature of the government, and the frailty of human na­ture, temptations to betray their trust, and to desert to the enemies of the people, too often prevail. False notions of greatness, universally adopted; hope of rising to the higher orders; and the desire of riches, which are the necessary scaffolding of false greatness, open wide the door to corrup­tion. Hence means are found to silence the boldest champion for liberty, and to lay prostrate the stubborn virtues of the patri­ot. Why should the people go so miserably out of the way, to erect powers hostile to each other? which cannot subsist with the common liberty, and which are dangerous to virtue itself?

It has long been a subject of wonder to the philosopher, and a matter of triumph to the friends of despotism, that those writers, who have gone farthest in their re­searches into the nature of man, and in discovering the true principles of civil and religious liberty, have found their theories incapable of being reduced to practice, in new establishments.

[Page 133]Locke, who was one of the first philo­sophers of his age, and the champion of liberty, was employed by the Lords Pro­prietors of Carolina, to form the plan of a constitution for their government. Though the friend of liberty, and of mankind, he had conceived no idea of any other security to the enjoyment of liberty, than what was to be found in the constitution of England. He seems not to have reflected, that here­ditary prejudices, in favor of ancient cus­toms, and even of ancient names: a habit of thinking and acting in a certain train, in measures, to which men are familiarised, render those things easy, in an establish­ment, venerable for its antiquity, which are utterly impracticable in new institutions. He, therefore, with a view of establishing and securing that liberty, which he esteem­ed the greatest happiness of a government, created an opposition of powers and inte­rests under names and titles, different from those, to which the people had been accus­tomed in England. The Lords Proprie­tors were the Sovereign; the newly creat­ed Nobility constituted an hereditary House of Peers, and the people had their Repre­sentatives in a House of Commons.

The exotic and unaccustomed names of Landgrave and Cacique, conferred on the Nobility, instead of Earl and Baron, to [Page 134] which habit had annexed a degree of vene­ration, had an influence to prevent their attaining any portion of that dignity, which the Peerage, under the shadow of the Mo­narch, enjoy in England. In this new situation, the opposition of interest, which had been established, instead of proving a security to liberty, produced nothing but violent animosity among the contending parties, and a grievous oppression of the people. The event soon discovered the system to be out of nature, and wholly im­practicable in its operation. Had Locke been fully acquainted with the laws of ac­countability, and the means of giving them effect in the administration of government, would he have fallen into such impractica­ble absurdities, in his constitution of Caro­lina? It is possible, however, that he might have been embarrassed by the particular views of his employers, the Lords Pro­prietors.

In the difficult passage from error to truth, perhaps, the state, which succeeds the almost total ignorance of savages, and which precedes a more general knowlege of the relations of nature; a state, in which the infant and feeble voice of the moral sense, is frequently lost amid the vio­lence of contending passions and appe­tites, may require, at least, it may endure [Page 135] a government founded in violence, and supported by opposition. The history of Athens, of Sparta, of Rome, and of many of the more modern states, exhibits the bulk of mankind in this character. A few men have arisen in every nation, great be­yond their age, the instruments of Provid­ence for the improvement of the world. To these, modern times are indebted for the first dawnings of science. As the be­nefactors of mankind, their names will be had in perpetual remembrance; but the history of their times informs us, that they were able to communicate little of their knowlege to the body of the people; to moderate the passions, or to influence, in any considerable degree, the general senti­ment. The governments of those times were as ill balanced, as the passions of the people, and for the same reason. People, in such a state, are keenly sensible of the present. They are, in general, little capa­ble of adjusting combinations, or of disco­vering any, but the most obvious relations and tendencies. From the character of those times, we have reason to conclude, that the violence of government, and the violence of the people, who often destroy­ed one set of tyrants, to make room for another, and were often guilty of greater abuses, than those, which they attempted [Page 136] to reform, did not proceed from the want of a balance in government. It proceeded from a want of knowlege, from the violence of the passions and appetites, the weakness of the moral sense, and consequently the sense of accountability, which rendered it difficult, if not impossible, to fix any suffi­cient barrier against the tyranny of rulers, or the licentiousness of the people. Cer­tainly, arguments, drawn from such a state of society, and of manners, in favor of a balance, constituted by an opposition of powers and interests, ought, with caution, to be applied to the present state; which is, in so many respects, very widely diffe­rent.

At this day, great improvements in sci­ence, in manners, and in morals, have tak­en place. The art of Printing has rendered the means of diffusing knowlege, almost universal. Science is no longer confined to the recluse. Useful knowlege, and useful science, are attainable by the mass of the people. Improvements have litte­rally begotten improvements. The know­lege of many things, which, in former times, was the fruit of long and laborious application, is now imbibed almost with the milk in infancy. Many an ancient sage, in the warmth of his philanthropy, would have exulted, could he have fore­seen, [Page 137] that in America, and in many na­tions of Europe, the plain husbandman would, at this day, possess more knowlege, applicable in human life, more useful sci­ence, than was to be found in all the schools of antiquity.

In this state of imperfection, the abuse of power will never be wholly prevented; but, when the idea of inherent powers, ex­clusive rights, and separate interests, shall, in the mode of betrustment, and the con­duct required of rulers, be no longer sug­gested to their minds, temptations to abuse will be, in a great measure, removed.

A frequent rotation in all the offices of government, has, by some statesmen, of no inconsiderable authority, been esteemed one of the most effectual provisions against an abuse of power. The advocates for this institution urge, that a rotation in offices has a powerful tendency to prevent the danger, which constantly arises from an inveterate habit in the exercise of power, in any man, family, or set of men, on the one hand, and the habit, which the people, on the other, are too prone to acquire, of directing their obedience to particular men or families, rather than to the laws and or­dinances of government; that these habits become inveterate, in any way, are not sufficiently checked by the frequency of [Page 138] elections, and always counteract the true principles of a representative republic. The experiment, though often made in the republics of ancient Greece, and of modern Italy, has never succeeded in preventing the abuse of power. On the contrary, an established rotation of offices has served rather to increase the rapacity of rulers, and to render the government but the more in­supportable. The reasons of this effect, I think, are obvious. Where a rotation is established, there frequently will, in those, who are brought forward to office, be dis­covered the want of a thorough knowlege of the business of their trust, and a want of dexterity, which is unavoidable to persons in new employments. But this is of less importance.

An interest in the approbation of the people, and a strong sense of accountability to them, in all official conduct is the great­est, or rather, the only effectual security against abuses in those, who exercise the powers of government. An institution, agreeably to which the greatest wisdom, the most distinguished patriotism, the highest integrity of conduct in a ruler, cannot en­title him to the proper reward of his virtue, an expression of the approbation of his fel­low citizens, in his re-election to office, diminishes the most flattering interest, which [Page 139] he ought to have in their favor, and in the same degree relaxes his sense of accounta­bility to the tribunal of public sentiment. His interest is seen diverted into another channel. He no longer looks for a public reward, but hopes, either, that his crimes may escape detection, or that his rapacity and acts of oppression will furnish the means of stifling future enquiry. An enquiry will soon be found to be pursued with less zeal, among a set of people, who, while they succeed to the same offices, succeed to the same views, and the same interests. In a representative republic, every institution ought to be avoided, which has a tendency to deprive the citizens of a right of employ­ing, at their election, except in cases of present incompatibility, in offices, men of known abilities, and experienced integrity, or which tends to diminish in the rulers, a strong sense of accountability, a perpetual interest in the approbation of the people.

Truth is but one. Errors are infinite. The knowlege of truth tends to unanimity of sentiment. Errors tend to endless divi­sions and factions. Banish mystery from politics; open every channel of informa­tion; call for investigation; tempt a dis­cussion of measures, and the public senti­ment will be the best criterion of what is right, and what is wrong in government. [Page 140] Make the members, both of the legislative and executive amenable to this tribunal. Subject them, by elections, as frequently as the nature of the case will permit, to the approbation or censure of the people. It will then be found unnecessary to have re­course to a rotation of offices, or to create hostile powers and interests among the rul­ers, that the people may watch in quiet, while their Lords are contending for the prize.

Although an opposition of powers and in­terests seems not to be admissible, upon a­ny rational ground; yet that there should be a division of the Legislature, into a Sen­ate and house of Representatives, is un­doubtedly an excellent provision. Public dis [...]ssion and mature deliberation, in the enact [...] of laws, are indispensibly neces­sary. The Senate and house Representa­tives, should have equal powers. No law should pass without the concurrence of both.

Should one body [...] through the preva­lence of some secre [...] fluence, or of popu­lar prejudice, pass too [...]tily upon meas­ures, the other might ca [...]ly arrest the decision, and prevent the da [...], which might arise from too tran [...]ient, or [...] par­tial a view of the subject.

[Page 141]There is another advantage, which may arise from a division of the legislative body, independent of the above consideration. That man, or body of men, who have formed any plan, are, in some measure, in­capable of correcting the errors, and mis­takes, which may, at first, have interven­ed. Their ideas, when arranged, flow ea­sily and almost unavoidably in the same channel. Those errors and mistakes, will be much more readily detected by others. This I apprehend to be a very important consideration, in the legislative institution. Still the negative power between the two Houses, is not to be esteemed a direct pow­er of controul, for the purposes of mutual defence. It is designed to produce ami­cable discusion, and a more thorough in­vestigation of public measures, and a gen­eral accommodation of the laws, to the manners, sentiments, and interests of the people. It is claimed by the citizens, to be interposed for their sake only, not for the sake of the rulers. It is necessary, that each body be satisfied of the good­ness of a measure, before it be adopted. If either be dissatisfied, it is to be no far­ther pursued.

This is the natural consequence, when two bodies have equal powers. Whenev­er they disagree, there must be a mutual [Page 142] negative. If one can finally determine a measure, against the opinion of the other, their powers are no longer equal. Their deliberations will not be mutual, nor will they long continue to be amicable. The superior body will bear a difference of opin­ion, with a degree of impatience. Sic volo, ^* will always be the most ready, the most decisive answer.

SECTION IV. Of the Election of the Members of the Le­gislature.—Qualifications of Electors, and Candidates.—Accountability of the Legis­lature — how secured.

THE exercise of the legislative power by representation, is an improvement of modern times. In all the republics of an­cient Greece, and in Rome itself, where the citizens had a share in legislation, every freeman was a member of the legislature, & gave his suffrage personally, in the great assemblies of the people. This brought together a body too unwieldy, even in the smallest states. In states of greater ex­tent, [Page 143] where the citizens were almost innu­merable, with the peculiar manners, the limited knowlege, and partial views of their times, they formed a heterogeneous assemblage of sentiments, passions, and in­terests, which bade defiance to all hope of compromise, by means of rational dis­cussion.

Those, who are little conversant in rea­soning, are yet capable of feeling. Ac­cordingly, we find, in the public har­rangues of their most celebrated orators, and statesmen, very little attention to in­vestigation. All their powers of elo­quence, were directed to the passions, and sentiments of the audience. The whole vigor of the soul was collected to this point. The instructions contained in their public orations, serves principally to mark the state of knowlege, the manners, and pub­lic sentiments of the times. The glow of imagination, which they discover; the propriety and irresistable force of senti­ment and expression, which wraps the whole soul in attention, have justly rendered them the admiration of succeeding ages. All this well accounts for the fluctuation of measures, in ancient popular govern­ments. They have often, and with pro­priety, been compared to fluctuations of the boisterous element. A republican [Page 144] government upon this model, must, in a large state, be very inconvenient, and expo­sed to perpetual revolutions.

It has been the opinion of many writers, that a democracy can be adequate only to the government of a small territory. They have held, that in this species of govern­ment, population must be stinted, or the number of citizens, who have the right of suffrage, limitted. The first is a very dis­couraging consideration to society. The latter constitutes a more or less numerous aristocracy. Montesquieu has adopted this opinion. He seems not to have con­ceived, that a government purely demo­cratic, could act wholly by representation. In his time, I believe an instance of this kind had not existed in any independent state. ^*

Speaking of the constitution of England, the same author observes, "The great advantage of representatives, is, their being capable of discussing affairs. For this, the people at large are very unfit, which is one of the greatest inconveniencies of a democra­cy." Representatives, chosen from the various parts of the community, agreeably to a just apportionment, are, not only, ca­pable [Page 145] of discussing the affairs of the nation, be it ever so extensive or numerous, but they bring to the discussion more know­lege of the general and particular manners, interests, and sentiments of the people, whose happiness is alone concerned in their deliberations, and dispositions more conge­nial to those manners, interests and senti­ments, than can be found in any other body of men.

The rights and interests of monarchy and aristocracy, ever exclusive of the rights and interests of the people, ever in opposi­tion, are not less so in a large, than in a small state. In a large state, the objects of their oppressions and exactions are more numerous, and may, sometimes, by dividing, lessen the burden. But whether the state be great or small, the same exclusive rights, the same opposition of interests, the same oppressions, and exactions, exist in kind.

The first thing to be considered, in forming a legislative body, is the qualifica­tions of electors, and the number and qua­lifications of representatives. These are not points of easy discussion. They have never been precisely determined. Some have insisted on a qualification in property. Others have extended the right of suffrage and of eligibility, to every acknowleged citizen.

[Page 146]In a democratic republic, in which every thing ought to tend to a certain kind of equality, property seems not to be a just criterion. The individual and social rights of man, are the subjects of legislative dis­cussion, and to these, the interests of the community are to be referred. The right of property is one of those rights, and gives rise to a very extensive interest among men. It is a right, however, which, if it meet a too partial indulgence, tends to a danger­ous inequality of influence, and with the power and interest, suggests to the proprie­tor the idea of infringing the rights of others with impunity. The interest of science, of industry, of commerce, and of the mechanic arts, have an equal claim on society. The proper encouragement of these, tends to a more equal distribution of the goods of fortune, and to correct the unequal influence of wealth. In a state where, through the prevalence of corrupt principles, the whole property is accumu­lated, and perpetuated in the hands of a few; where the great mass of the people are reduced to a state of dependence, ser­vility, and meanness, from which they can never hope to emerge, but by the destruc­tion of their oppressors, a general right of suffrage, would be dangerous to the few, and for a time, even to the people them­selves. [Page 147] In most, if not all the governments of the United States of America, where the law equally regards the rights of the rich and the poor; where few are to be found without property, and fewer still without a well grounded hope of obtaining it; where industry and economy rarely fa [...]l to procure a competence, and often lead to opulence, no ill consequences are to be feared from a general right of suf­frage.

Disqualifications will, however, in some cases, be found necessary. It will, at least, be found expedient to exclude, both from the right of suffrage, and eligibility, those, who, for want of age, may be supposed to be wanting in discretion. Certainly the interests of virtue and of the public require, that those should be excluded, who, by their crimes, have manifested a disposition totally corrupt, and by their conduct declared to the world, that they are no longer to be trusted.

I am unable to persuade myself, that any distinction, in point of qualifications, ought to be made, between electors and candi­dates. I say in general, for a distinction of [...]ge, which to abilities adds experience and maturity of judgment, may well be admit­ed. There is nothing invidious in the distinction. It is an honor yielded by [Page 148] mankind, to a certain degree, with a con­scious approbation of virtue. Other qua­lifications are mostly invidious. They in­troduce, in some measure, a distinction of classes. They excite a degree of haughti­ness in the candidates. The electors feel themselves degraded, and that their class, notwithstanding their right of suffrage, is unrepresented. If a character for integrity and abilities are the only qualifications for a candidate, they will be more affiduously cultivated. These are qualifications, which alone are useful to the people, and of these the people are the only competent judges. The choice of a worthy character, reflects honor upon themselves, which they enjoy with the more satisfaction, as they are sen­sible of no restraint or limitation in their choice. From these considerations, I ap­prehend, that the right of suffrage and of eligibility ought to be the same, and limited by no qualification but that of age. If, in any state, other qualifications shall be found necessary in either, the necessity must have arisen from some antecedent defect in the constitution and laws.

The number of representatives seems less capable of a precise limitation. The ex­tremes are very discernible, but they are very distant. Too numerous a representa­tion verges towards the inconvenience of [Page 149] an assembly of the people. It incumbers discussion, and gives an ascendency to par­ticular passions, which often, in a numerous assembly, through a sympathetic impulse, pervade the whole body, like a shock of electricity, and irresistably influence the decisions of the moment. On the other hand, if the representative body are too few in number, their measures are liable to be dictated by limitted views and partial inte­rests. Possibly we can go no farther than to say, that it ought to be sufficiently nu­merous to probably comprehend all the passions, sentiments, and interests, which have a national influence.

These observations apply equally to the House of Representatives and the Senate. The better to equalize the representation for the House, the State ought to be divid­ed into as many districts as there are re­presentatives to be chosen. Where no lo­cal, or more powerful reason opposes such division, the districts should be apportioned by the number of inhabitants. This will, in general, give the most equal representa­tion of interests. The voters too will act understandingly, and with a personal know­lege of the candidates. Where a number of representatives are assigned to a district of greater extent, every engine of intrigue is commonly put in motion and the repre­sentatives [Page 150] are chosen, by the prevailing in­terest of the district, to the exclusion of every other interest. The mode of election proposed for the House of Representatives, gives opportunity for an advantageous modification in the election of a Senate. The Senators are to be representatives of the people, no less, in fact, than the mem­bers of the other house. It is a very good idea, that the Senate shall be considered as a national council. This suggests a dis­tinction of age, to give maturity to their deliberations. Public measures, before they are adopted, ought to be considered in every point of light, in which they can affect the passions, the morals, sentiments, and interests of the community, both gen­eral and particular. While they provide for present accommodation, they ought not to lose sight of future improvements. To secure a more deliberate discussion, and a more calm investigation, not only ought the warmth and inexperience of youth to be excluded from the Senate, but the mem­bers should be fewer in number, than those of the House of Representatives. While the House of Representatives, actuated by all the passions and sentiments, in turn, give a vig [...] and national spirit to the mea­sures of government, any precipitation in­to which they might fall, will be prevented [Page 151] by the firm composure of the Senate. In proportion as they are fewer in number, they will be chosen by larger districts. This will produce a different combination of the interests, which they represent, and exhibit a different and more collected view of the objects of legislation.

To prevent, in the members of the legis­lature, every idea of an independent power, or of property in their appointments, they must be chosen for a limited time. A pe­riod must be fixed, when their exercise of power shall cease, and leave them only that pre-eminence above their fellow-citizens, which they derive from the public appro­bation. The period must be sufficiently long for completing the ordinary rotine of business. A year may, in general, be the most convenient time. Perhaps, in larger states, the nature of the ordinary business, the magnitude of the objects which demand the attention of the legislatures, and the subjects to be discussed, may require a longer period. Reasons may likewise exist for fixing different periods for the members of the Senate, and the members of the House of Representatives. In each, some period ought to be fixed, beyond the power of the Legislature to alter. Such a provi­sion will, on every occasion, recall their attention to the interests and happiness of the [Page 152] people. It will place their accountability, constantly, in view. It will fix them in a dread of the censure, and give them a most flattering interest in the approbation of the people.

To render the public sentiment a more rational, and a more powerful check upon every department of government, it is es­sential, that there be, in the constitution of every free state, an effectual provision for the dissemination of useful knowlege. No knowlege can be more useful to a people, than that, which enables them to manage, or, at least, to judge, with propriety, of their own and the public interests. "Let liberty be attended with knowlege." It removes the temptation to abuse, by taking away the hope of successful imposition. To this end, common schools, as well as public seminaries, should be considered as an important object of legislative attention. Let it also be a sacred stipulation, that all debates in the Legislature shall be open. Let effectual measures be taken to facilitate their publication in course, and to procure them a speedy circulation among the peo­ple. Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.

SECTION V. Of the appointment and accountability of the Executive and Judiciary.

THE executive is the ultimately effici­ent power in government. For the sake of dispatch, of unity of action, and of rep­resenting the individuality of the state, in transactions with other nations, this power ought to be vested in one person, whom, for distinction, we will call the President.

Some have thought, that the election of the President might, with the greatest safety, be entrusted to the Legislature. Others have held, that it should be the sacred right of the people. There are un­answerable objections to the exercise of this right by the Legislature. It gives an idea of dependence of the President on the Legislature, and intercepts his account­ability to the people. All elections by the representative body, are liable to in­trigues and coalitions, which greatly in­fluence public measures. This evil is encreased, in proportion to the importance of the election.

[Page 154]An upright discharge of the duties of the executive, is the most honorable of a­ny in the state; an abuse the most danger­ous, and in none, are the temptations so powerful. It ought, therefore, to be guarded against with every rational check. At the same time, it must not be so in­cumbered as to clogg its necessary activity. The good or bad conduct of the executive is, in most instances of internal adminis­tration, immediately felt by the people. To prevent any hurtful coalition, between the executive and the legislative body, and to subject the President to the controul of public sentiment, his appointment should be by periodical elections of the people. In more extensive and complicated gov­ernments such as that of the United States, this mode of electing the President, may be inconvenient, or even impracticable. When this shall appear, some other pro­vision must be made; but care must be ta­ken, to prevent all legislative interference, in the appointments, unless, which will sometimes happen, no choice shall have been made, in the mode prescribed, and to make it depend as much as possible, on the sentiments of the people.

The business of the executive, is too ex­tensive and various to be performed by one man. Many of its duties must be per­formed [Page 155] by subordinate Ministers, who are to be considered as assistants to the Presi­dent. The appointment of these proper­ly falls within his province. He will be responsible to the public, for their charac­ter and abilities, though not for their crimes. He ought, therefore, ordinarily, to be entrusted with their removal.

Besides the duties of the executive, al­ready mentioned, there are other duties, very necessary to an orderly and economi­cal arrangement of public measures. It will, at all times, be the duty of the Pres­ident, to inform the Legislature of the situation of public affairs, of the event of measures, which have been adopted, and to recommend to their consideration those subjects, which demand their more imme­diate, or more particular attention.

According to the ordinary rotine of of­ficial business, it will be the duty of the subordinate Ministers of the executive, when required by the Legislature, to give a clear and just account of the affairs of their several departments, to make proper arrangements in those matters, which are committed to their charge, and to accom­pany them with all the necessary informa­tion, which may assist that body to adopt and pursue a regular system, in their inter­nal economy, and to conduct with propri­ety [Page 156] and good faith, as well toward indi­vidual citizens, as in their intercourse with foreign powers.

Happily for mankind, it has been found that the exercise of the executive power, is sufficiently capable of precise limitation, by known and established laws. Its Min­isters may, therefore, be subjected to tri­al, before a constituent tribunal, to remo­val and punishment, for male-administra­tion. Impunity should, on no account, be annexed to office or dignity, So far from consisting with the good of the commu­nity, it is directly opposed to its interest and safety. A strict adherence to these principles, in the constitution and admin­istration of government, will secure as great a check upon the abuse of power, as the imperfection of human institutions will admit. It cannot be too often inculcated, that, to indulge, or rather to create an op­position of interests, on which to found an opposition of powers, will, if we may rely on the experience of the present and past ages, always prove ineffectual to the end of restraint, and in a greater or less degree, subersive of the rights and liberties of the people.

An executive council, whose advice may assist the President, in matters of general importance, or doubtful issue, appears to [Page 157] be a wise and necessary institution. From this council, the members of the judiciary are carefully to be excluded. For this ex­clusion there are two substantial reasons. The first has already been mentioned; the necessity of a separation between the le­gislative, executive, and judiciary, that each may be rendered distinctly accounta­ble. The second is, that their advice will pre-occupy questions concerning the legal and constitutional rights of the citizens, in which the administration of the execu­tive may be involved, and of which, in their official capacity, they are the only proper judges for redress.

There are nearly similar reasons against the admission of either branch, or any member of the Legislature, to this coun­cil. The objections are, that it blends those powers, which, as we have seen, ought to be kept distinctly separate. It shifts the responsibility from one to the other, and leaves it less clear, who is to be accountable. It is of importance, that there should be an enquiry into the con­duct of public officers; that prosecutions should be brought forward against the guilty; and that there should, somewhere, exist a constitutional court for their trial. The enquiry, prosecution, and trial, ought, from their importance to the community, [Page 158] and the character and situation of the par­ties, to be more public and solemn, than those, which are established in the case of common offenders. The National Repre­sentatives have been thought the most proper board to institute such enquiry, and to bring forward the accusations of the public; and the Senate the most proper court for the trial of such accusations. Though this appears not perfectly consist­ent; yet probably no better provision can be made. The introduction of an inde­pendent tribunal, for the trial of impeach­ments, would have greater inconveniences, and lead to endless consequences. If such be the provision for the accusation and trial of executive officers, certainly it is not very consistent, that the same men, or the same body of men, should advise, and afterwards, on trial, decide upon the con­duct, which had been adopted and pursued in consequence of their advice. It will of­ten be proper for the Legislature to advise and direct the Executive to the pursuit of some national measures, which may be ne­cessary, or expedient. Their previous ap­probation may give weight to the measures, and a facility to the execution. This ad­vice, however, should be general, or, in matters, which are considered as discre­tionary, with the Executive. It should ne­ver [Page 159] extend to those particular instances of conduct, which may become the ground of an impeachment. Upon these consi­derations, would it not, if an Executive Council be necessary, be more consistent, that it should be composed of a distinct bo­dy, elected in the same manner as the Pre­sident, and in like manner amenable for their conduct?

The situation of the Judges, or Ministers of the Judiciary department, is somewhat different from that of the others. The integrity of their conduct has a great influ­ence upon government. It is indispensi­bly necessary to an impartial administration of law, and the security of public and pri­vate rights. Their decisions are, mostly, local, and of individual rights; but the precedents established by their decisions, become general rules for the interpretation and application of the laws, which follow the principles of the government. In re­publican governments, the law is to be in­terpreted, with a spirit of equity, impartial­ity, and moderation.

In the mode of performing the duties of the Legislative and Judiciary, there is a very material difference. In making laws, a great regard must be had to the circum­stances, manners, and sentiments of the people, as well as to the principles of the consti­tution. [Page 160] The laws must be the best, which the people can bear. In judging, whether between individuals of the people, or be­tween private persons and public officers, a strict regard is to be had to the very right and justice of the case, agreeably to the principles of the constitution, and the laws of the land. The Judges ought not to stand in awe of the frowns of power, or to be influenced by temporary smiles of popular favor. The abilities, integrity, and independence of the Judges, is a shield, both to the rulers, and to the people. They give a steady nerve to the mild ener­gy of government, and ultimate security to private rights. That kind of accounta­bility, therefore, which is supported by po­pular elections, and which is proper for the members of the Legislature, is not proper for a Judge. From the interest, which men of property and influence might ex­pect in future decisions, the people would, in the choice, be liable to be mislead in their judgment of characters. The same observations will hold of a legislative ap­pointment, in addition to what was above observed of elections, in general, by the Legislature, that they give rise to intrigues and coalitions hurtful to public measures. In popular appointments, no one holds himself responsible for the character of the [Page 161] person appointed. In the Legislature, re­sponsibility is, in a great degree, lost among numbers.

The appointment, or at least the public nomination, of the Judges, ought to be entrusted to the President, or the head of the executive. His conduct is constantly, and singly, exposed to the public view. He will hold himself fully responsible for the character and abilities of those, whom he appoints to office.

To secure them in that degree of inde­pendence, which shall place them above the temptation of a bias, they should hold their office during good behaviour. Their salaries should be fixed beyond the power of the Legislature to alter, at least to di­minish, during their continuance in office. For corruption, or male-administration in office, let them be liable to removal by impeachment in a constitutional way.

There may, however, be some things, in the conduct of a Judge, which go to his character, and destroy that respect and public confidence so necessary in securing a ready acquiescence in the decision of the Judiciary, and a prompt obedience to the laws. They may, nevertheless, be of such a nature, that they cannot be made the subject of an impeachment. To remedy this evil, which is, sometimes, a matter of [Page 162] great consequence in government, and to impress on the minds of the Judges, a sense of the necessity of an unblemished integrity of conduct, they might be remov­able on an address to the Executive, from both branches of the legislature. To pre­vent the effect of envy, of intrigues, and the popular frenzy of the moment, it should be made a matter of deliberation. Let it be necessary, that two thirds, at least, of each branch concur in the address. These pro­visions, I apprehend, will hold the Judges sufficiently accountable. As was hinted above, their situation, different from that of other rulers, does not require, or even admit, of the same kind of accountability. Their unjust decisions may render them odious, may subject them to trial, punish­ment, and removal; but can add very lit­tle to their own emolument or power.

SECTION VI. Of Juries.

THE institution of Juries is of great an­ticquity. The Selecti Judices ^* of the Ro­mans, and the Dicastae and Heliastae ^† of the Greeks, had in several respects, a near resemblance to modern juries. They sub­sisted in one form or another, among all the northern nations of Europe, and were by them introduced into all the gov­ernments of their conquests. They have, however, been preserved in very few. They are a powerful support of civil lib­erty, and cannot long exist in a govern­ment wholly arbitrary.

[Page 164]Among the English, their history does not reach the antiquity of the institution. It has there been improved, and with the democratic branch of the government, continues the grand paladium of their lib­erties. From them it is derived to the federal Americans, and makes an import­ant part of their civil constitutions.

In mixed governments, like that of Great Britain, the intervention of juries, both in the prosecution of crimes, and in decision of private rights, is a principal security to the subject, against the danger­ous power and influence of the monarchi­cal and aristocratic branches. It is equal­ly necessary in a republic, but for reasons somewhat different.

In a republic, the powers of govern­ment are supported, not by force, but by the sentiments of the people. It is necessary to cultivate a sentimental attach­ment to the government. The powers of government are visible only in the exer­cise. The mode, in which they are exer­cised, either invigorates or weakens the sentiment. The exercise of power is not, in general, directly agreeable to those, who are the subjects of it. The administra­tion of justice, without a view to the con­sequences, is rather austere and forbidding, [Page 165] than amitable and attractive. ^* As more men are capable of feeling, than reasoning, and all feel before they reason, the first view is rather unamitable. The Ministers of justice are the objects of these feelings. The ideas of unamitable severity daily impressed on the minds of the people, are not easily corrected by reasoning on the consequences. ^†

Justice is administered for the redress of some evil, either public, or private. The evil is past, and sometimes uncertain, or at least of difficult investigation. The evil, which is inflicted by the sentence of the Ministers of the law, is present and certain. The people cannot, consistent with an impartial administration, have a direct controul over them. These consid­erations have, more, or less, a tendency to diminish that sentiment of attachment, [Page 166] which is so necessary in a republic. The institution of juries provides an adequate remedy. In this institution, I compre­hend both the grand jury, who are to pass on the accusation, and find it supported, be­fore any person accused, can be put on his trial, and the petit jury, who pass on the final trial, all questions, civil and crim­inal.

In the administration of criminal law, the institution of a grand jury has a very leading influence, in a free government. ^† To guard the innocent from the infamy and oppression of a public accusation; and without partiality, without favor, to bring forward the guilty to trial for their crimes, constitutes the principal duty of a grand jury. Taken from the body of the people, and having, in the prosecution of offences, no interests but the peace and welfare of the community, as far as they are secured by the prevention of crimes, they are pla­ced as a shield between the accused, and the interested passions, or malicious at­tempts of private prosecutors. This in­tervention between the people and the of­ficers [Page 167] of the law, who, from the nature of their office, may, sometimes, be suspected of interested views, or at least of a want of feeling, gives a facility to the execution of criminal law, and reconciles to the sentiments of the people, the necessary punishment of offenders. The punish­ment of the guilty, if, from an oppressive partiality in the prosecution, or an undue rigor in the execution, it meets not the acquiescence of the people, can have no salutary effect in society.

It may be made a question, how far per­sons injured, ought to be admitted to pros­ecute for the end of punishing. I appre­hend, this will depend much on the state of manners, and the principles of the gov­ernment. In a government, supported, in a great measure, by force, and in a state of manners, in which the mind is highly inflamed by private injuries, and the passi­on of revenge, is satisfied with nothing short of personal retaliation, it may be ne­cessary to permit the person injured to prosecute his revenge, at law, to prevent the fatal consequences of private malice. To restrain personal revenge, and subject it to general laws, is a great point in the progress of society. Still, as prosecutions for the end of punishment, by the party injured, have a direct tendency to perpet­uate [Page 168] a resentment of injuries, and to make the law instrumental in the exercise of per­sonal enmity, the practice, by no means agrees with a general refinement of man­ners, ^* or the humane principle of a demo­cratic republic. Persons injured ought to rest satisfied with a full security in the right of reparation. The right of punish­ing ought to be exercised solely for the prevention of crimes, and to be permitted to those only, who are appointed and se­lected by law for that purpose, and who are supposed to be capable of candor and mo­deration in their proceedings. The prac­tice of admitting common informers, who are to receive a share of the penalty, as a reward for prosecuting, is still less to be justified. The practice can never be neces­sary, in any state of manners. In this case, the plea of preventing a greater evil by the admission of a less, wholly fails. It often serves the purpose of private malice; always to cultivate a spirit of revenge, and to dis­seminate [Page 169] jealousies, and private animosities among the citizens. It is calculated for those governments only, in which the rulers foresee the punishment of their own crimes in the unanimity of the people. Can we then hesitate to pronounce, that in the United States of America, the institution of criminal prosecutions, in the name, and under the direction of private persons, is contrary to the present state of manners, and the principles of their governments? And that the intervention of a grand jury ought to be secured in every constitution, as the sacred right of the people, in prosecu­tions for crimes?

The observations made on the institution of grand juries, who, by their intervention between the ministers of the law, and the people, and their approbation of prosecu­tions, remove the odium of severity, and reconcile the execution of criminal law, to the sentiments of the people, apply with more force to petit juries, in proportion as the condemnation is of more consequence than the accusation. This is not all. The institution is the best which has been de­vised, and probably, which can be devised by human wisdom, for obtaining substantial justice, in trials, both criminal and civil.

The particular province of a jury is to weigh evidence, and to decide upon facts. [Page 170] It is true, that, in every question, justice results from a combination of law and facts. It is true, also, that in a complicated state of society, the law may become intricate, and its application not a little difficult. This, however, can happen, in questions only of a civil nature. No crimes are to be made out by a construction of dubious facts, or a doubtful application of law. It is the province of the Judges to explain and apply the law, when it is submitted to them, by the Jury, on a statement of facts. To such statement the Jury are fully competent.

Will it be thought strange to assert, that professional and systematic knowlege is less competent to judge of proofs of fact, than plain sense, conversant only in the common business of life, and the common characters of men? And yet, to the mortification of the great and the learned, experience has established this to be generally true. It is not without reason, that men acquiesce more readily in the verdict of a Jury, than in the opinion of the Judges, in matters of fact. At the same time, there is another consideration of nearly equal weight. The Judges are viewed as a distinct class, placed above the common interest and common feelings of the citizens. Hence arises an idea, though often ill founded, of a distinct [Page 171] interest, and a general bias upon certain questions. Juries are, or ought to be, tak­en from the substantial class of citizens. Effectual provision should be made to guard against every inlet to the corruption of Juries, and against the admission of those on trial, who may be subject to prejudice, or inte­rested views in their decisions. With these precautions, the justice of their decisions will be attributed to the excellence of the administration. If, at any time, they shoud prove unjust, it will be attributed to the imperfections of humanity. It will be viewed as a temporary inconvenience, for which the laws are not answerable; while unjust decisions made by the Judges, are considered as dictated by standing, official prejudices, by interest, or secret corruption, which, however dangerous, are not easily removed.

From this brief view, it appears, that the institution, in which I comprehend both Grand and Petit Juries, is intimately con­nected with the principles of a free govern­ment. It sufficiently obviates any danger, which might be supposed to arise from the independence of the Judges, and secures the administration of justice, in the spirit of impartiality and moderation, the true spirit of a free government.

SECTION I. In what sense Men are born equal—And in what sense they are said to have equal Rights.

IT has been said, and justly, that there are natural inequalities among men. Some are stronger, others are weaker. They dif­fer no less in their mental powers. These differences frequently depend on the struc­ture and organization of the body, and arise from causes, which began their ope­ration antecedent to the birth. They are, sometimes, derived through a long line of ancestors. Men therefore, are not born equal. There are, likewise, adventitious inequalities. The same object, whether [Page 173] physical or moral, cannot be exhibited to every one, at all times, in the same point of view. The minds of all are not alike susceptible of impressions from the same object.

Nature has opened a great variety of pursuits, which are lawful, and which are, more, or less, necessary to men. Different men are necessitated to different pursuits. No one man is equal to the task of all, nor do his occasions require it. The conveni­ence of all, mutual interest, and mutual accommodation, dictate to each, a certain degree of limitation in his pursuits. Dif­ferent pursuits require different degrees of exercise, which produce different degrees of bodily strength. The different objects, exhibited in the variety of pursuits, produce different degrees of knowlege. These causes, sometimes, correct, but more fre­quently, increase the original inequalities, both of body and mind.

When therefore, it is said, that men are born equal, it cannot be understood, that they are born with equal powers and facul­ties, or an equal facility of improvement; or that the laws of their nature admit, in practice, of equal acquisitions. Can it mean any thing more than, that all men are born equally free, and have an equal right to follow the laws of their nature, compre­hending [Page 174] all its relations? So far men are equal in rights. Power and right are not convertible terms. Rights are the result of certain relations. They do not, for their existence, essentially, or principally depend on power. Power is necessary to the pre­sent exercise only, to the full enjoyment. They are sanctioned by the laws of our nature, and are as immutable as the laws themselves. A man may, by force, be deprived of the present exercise and enjoy­ment of his rights; but he is not, therefore, deprived of the rights themselves. Are the laws of nature, are civil laws destroyed, because they are violated? Certainly they are not.

Rights may be divided into general, or primary, and particular, or secondary rights. General rights are, first, those which are purely the rghts of the mind, or intellectu­al rights. These can never justly be sub­ject to civil regulations, or to the control of external power. Secondly, a right [...] use our own powers and faculties, natural and acquired for our own convenience and happiness. ^* The use, however, must be in [Page 175] a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, a [...] are clearly derived from those laws. Under the last head, comes the general right of making acquisitions. The exercise of this right, therefore, is sub­ject to particular modifications. Particular rights are found in certain relations to something external. They are the title, which a man derives from the exercise of his powers and faculties, in any just and lawful mode of appropriation, to the ex­clusive enjoyment of those things, which he has brought within his general right of acquisition. The general right of acquisi­tion, is the foundation of particular rights. The latter are derived from the for­mer. They do not stand in opposition, but in perfect harmony. Without the particular right, by which men are secured in the enjoyment of thei [...] several acquisi­tions, a general right to acquire would be of no avail. The general rights, however a part of them, to render them universally reciprocal in society, may be subjected to certain modifications, can never justly be abridged, or suffer any dim [...]nution, either directly or by consequence. Particular rights exist in certain relations between a man and particular subjects. These rela­tions [Page 176] are liable to various alterations and modifications. The man may cease, and with him all his rights. The subject may cease. The right to the subject may be forfeited by the laws of society. It may be transferred, enlarged, or diminished.

Of property it is universally true, that he, who has the full right of enjoyment, has likewise the right of disposal. The right of disposal is co-extensive with the right of acquisition. Although one may have a present, exclusive right of property in a certain subject, it is nevertheless open to another's right of acquisition, by mutual compromise. In this consists the harmony and reciprocity of the general right of ac­quisition with the general rights of proper­ty. Different powers may give, greater or less extent to particular rights, or to the subject of those rights. The greater the powers and faculties of an individual, the more things he may bring within his par­ticular rights. The result of all this is, that general rights alone are permanent, are equally and fully attendant upon every individual. So far all are equal in rights. Particular rights are, for the mutual ac­commodation, and happiness of men, sub­jected to their occasions and necessities. Indeed, were not this the case, the sense of property must be fallacious; arts must [Page 177] cease; industry could have no reward; economy would be of no avail to the indi­vidual, and liberty itself would be but the dream of the visionary.

SECTION II. Of the Nature of Equality in Republics.

SOME of the most eminent writers on government, have supposed an equality of property, as well as of rights to be necessa­ry in a republic. They have, therefore, prescribed limits to individual acquisition. The Reason given is, that riches give power to those who possess them, and that those who possess power, will always abuse it to the oppression of others. If this be a good reason for limiting the acquisition of riches, there is equal reason for limiting the improvement of bodily strength and men­tal abilities. Such a step would be an a­bridgement of the primary rights of man, and counteract almost all the laws of his nature. It would, perhaps, could it be re­duced to practice, place the whole human race in a state of fearless quietude; but it would be a state of tasteless enjoyment, of stupid inactivity, not to be envied by the lowest tribes of the animal creation.

[Page 178]If such be the principles of a republican government, it is a government out of na­ture. Those have made a wiser choice, who have submitted to the less tyranical principles of absolute monarchy. These are not the principles of a republic. They are the principles of anarchy, and of pop­ular tyranny.

We have just now enquired into the nature of equality among men, and have seen in what it consists; a free and equal enjoyment of the primary rights, which are, the intellectual rights, and the right which men have of using their powers and faculties, under certain reciprocal modifi­cations, for their own convenience and hap­piness. The equality necessary in a repub­lic, requires nothing more, than this equal­ity of primary rights. I shall here instance in the right of acquisition only, as being sufficient for my present purpose.

To the security of this right, certain re­gulations, as to the modes and conditions of enjoying the secondary rights, or in oth­er words, of holding property, are necessa­ry. Not, indeed, as to the quantity, but the freedom of acquisition, use, and dispos­al. To give to any individual, or class of men, a monopoly, an exclusive right of ac­quisition in those things, which nature has made the subjects of property, to perpetu­ate, [Page 179] and render them unalienable in their hands, is an exclusion of the rights of oth­ers. It is a violation of the equal rights of man. Of this nature are all exclusive priv­ileges; all perpetuities of riches and hon­or, and all the pretended rights of primo­geniture. Inequality of property, in the possession of individuals, is not directly, nor by inevitable consequence, subver­sive of genuine liberty. Those laws are, indeed, subversive of liberty, which, by establishing perpetuities, deprive the own­er of a right of disposal, and others, so far as they extend, of the right of acquisition; which annex privileges to property, and by making it a qualification in government, create a powerful aristocracy.

Riches are the fruit of industry. Honor the fruit of merit. Both ought, as to their continuance, and the influence which at­tends them, to be lest to the conduct of the possessor. If a man, who, by industry and economy, has acquired riches, become indolent, or profligate, let him sink into poverty. Let those who are still industri­ous and economical, succeed to his enjoy­ments, as to their just reward. If a man, who, by noble and virtuous actions, has acquired honor, the esteem of mankind, will behave infamously, let him sink into contempt. To exclude the meritorious [Page 180] from riches and honors, and to perpetuate either to the undeserving, are equally in­jurious to the rights of man in society. In both it is to counteract the laws of nature, which have, by the connection of cause and effect, annexed the proper rewards and punishments to the actions of men. Wealth, or at least, a competency, is the re­ward, provided by the laws of nature, for prudent industry; want, the punishment of idleness and profligacy.

If we make equality of property neces­sary in a society, we must employ force, a­gainst both the industrious and the indo­lent. On the one hand, the industrious must be restrained, from every exertion, which may exceed the power, or incli­nation of common capacities; on the oth­er hand, the indolent must be forcibly sti­mulated to common exertions. This would be acting the fable of Procrustes who, by stretching, or lopping to his iron bedstead, would reduce every man to his own stand­ard length.

If this method should be deemed ineli­gible, the only alternative will be, either by open violence, or the secret fraud of the law, to turn a certain portion of the well-earned acquisitions of the vigilant and in­dustrious, to the use of the indolent and neglectful.

[Page 181]Let us not, in a Republic, attempt the extreme of equality: It verges on the ex­treme of tyranny. ^* Guarantee to every man, the full enjoyment of his natural rights. Banish all exclusive privileges; all perpetuities of riches and honors. Leave free the acquisition and disposal of pro­perty to supply the occasions of the owner, and to answer all claims of right, both of the society, and of individuals. To give a stimulus to industry, to provide solace and assistance, in the last helpless stages of life, and a reward for the attentions of humanity, confirm to the owner the power of direct­ing, who shall succeed to his right of pro­perty, after his death; but let it be without any limitation, or restraint upon the future use, or disposal. Divert not the consequen­ces of actions, as to the individual actors, from their proper course. Let no prefer­ence be given to any one in government, but what his conduct can secure, from the sentiments of his fellow citizens. Of pro­perty, left to the disposal of the law, let a descent from parents to children, in equal portions, be held a sacred principle of the constitution. Secure but these, and every thing will flow in the channel intended by nature. The operation of the equal laws of nature, tend to exclude, or correct every dangerous excess.

[Page 182]Thus industry will be excited; arts will flourish, and virtuous conduct meet its just reward, the esteem and confidence of mankind. Am I deceived? or are these the true principles of equality in a demo­cratic republic? Principles, which will secure its prosperity, and, if any thing in this stage of existence can be durable, its perpetual duration.

SECTION III. Of the Right and Equality of Descents.

IN every nation, among whom property, as a provision for the future, has become an object of pursuit, except under the most arbitrary governments, the right of children to inherit the estates and interests of their parents, has been adopted in their civil institutions. It has been a question, whether this be a dictate of the law of na­ture, or whether it be a regulation of civil policy merely.

Those, who maintain, that private pro­perty is a creature of municipal law only, and that its right originates in civil insti­tutions, do well to suppose, that every [Page 183] rightful mode of acquisition and disposal, the transfer of the right, and every mode, by which it can pass from one to another, originate in the same institutions. If, how­ever, the right of property, as, I think, has been, clearly, shewn, be an establishment of natural law; if it result from certain relations of nature, and be discovered by an internal sense, an intuitive perception, it will be but a reasonable conclusion, that the laws of nature, likewise, reach the ac­quisition and disposal. Such laws there undoubtedly are; and I am persuaded, it will, on enquiry, be found, that, in these laws, originates the right of the heirs in the estate of their ancestors. Civil institutions have only modified, and confirmed the right. It is not, indeed, an absolute, but a qualified and subordinate right, subjected to the right and occasions of the ancestor.

The union of parents and children forms a society, of all the most intimate, and the most purely natural. The reciprocal rights and duties, parental and filial, are derived purely from the relations of nature. They are, in their origin, independent of the modifications of art or civil policy. Not only members of the several families, but others, distinctly, and forcibly perceive, what I have ventured to call the individu­ality of these little communities of nature. [Page 184] The perception resembles that of the mem­bers united to form the body. All the members of these little communities are perceptively conscious of the warmest and tenderest interest, in the good or evil, moral or natural, which befals each other. No man hesitates, when he observes an instance of a contrary disposition, boldly to pronounce it to be unnatural.

When a child is arrived at maturity, and ready, as a new stock, to branch into a new family, it is, from the subsisting relations, perceived to be the duty of the parent, ac­cording to his ability, and with a due re­gard to the subsisting or growing relations of the other members of the family, to contribute to the advancement of such child. Should a parent, in common cases of this kind, neglect to contribute, every one perceives him to be guilty, tho' not of a civil, yet of a moral crime. He is, at once, believed to be under the pre­vailing influence of avarice, or some other too selfish passion, which has stifled the voice of nature.

The claim of the child, arises not from any quid pro quo, any legal consideration, advanced on his part, in which the duty, on the part of the parent, originates. Did the duty originate in any such considera­tion, the duty and the consideration would [Page 185] be commensurate. The child, who had contributed least to the benefit of his pa­rent, during minority, would have the least claim upon the parent for advancement. Where there has been a criminal neglect, or disobedience, on the part of the child, this is truly the case. When it has happen­ed through a natural imbecility, the mis­fortune, and not the crime of the child, the obligation of the parent is rather in­hanced, than diminished. This is clearly a dictate of nature, and designed to main­tain a degree of equality among the mem­bers of the same family, by apportioning the provision to the unavoidable exigences of each. These duties, consistently with the right of the parent, with his authority, and the harmony of the family union, can be very little, if at all, subjected to civil rules. They must be left to the law of moral obligation.

I think the truth of these observations cannot be doubted. Hence it clearly fol­lows, that the children, resulting from the relations of nature, in their connexion, have a lien on the property of the parent; sub­jected nevertheless to the full right of the parent. It as clearly follows that, when the right of the parent ceases, by his death the right of the children takes f [...]ll effect, as surviving members of the connexion. [Page 186] The law, which confirms it to them, does nothing more, than perform the last natu­ral duty of the parent.

Where there is no immediate descend­ants, the same relations, different only in degree, appear to extend to collaterals. In proportion to the distance, the relations are less strongly marked, and the percep­tion of right more faint. It is not easily determined, at what precise point they wholly cease. It has generally, in the best ordered states, been agreed to carry the right, as far, as the relations can be traced. The relations, however remote, clearly carry a right preferable to that of a total stranger.

It may be thought, that if the right of the children, as has been contended, be founded in the laws of nature, those laws are immutable, and consequently the right; that it will, therefore, abridge, or wholly supersede the parent's right of disposal. It is true of the laws of nature, when consi­dered abstractly, that they are, immutable; but it is not true, in the application. The laws of nature result from certain relations. These relations, remaining under the same combinations and modifications, the result, consequently the law, will be invariably the same. The relations are subject to different arrangements. They may be [Page 187] enlarged, or diminished. They may par­tially or wholly cease. In all these cases, the result, and consequently the law, as to its application, will vary, precisely as the relations themselves.

The parent during his life, has a full right to direct the use and disposal of his property. That he is under a natural ob­ligation to provide for his houshold, and to advance his children with his property, as his occasions admit, and their circumstan­ces require, no more affects the freedom of his right, than any moral obligation affects the freedom of action. On the death of the parent, his right, and the re­lation in which he stood, while living, cea­ses. The relation of the children, as far as it respects the property, of which no disposition had been made, still remains. Their right, which was only a contingent right, and, indeed nothing more than a moral claim, is perfected and realized.

It may likewise be thought, that if the right of the children be thus established, it militates against the right of the parent to make any testamentary dispositions of his property. It has been observed, in effect, that the right of the children, during the life of the parent, is founded in claims of a moral nature. Of their admission and extent, he is, by nature, constituted the [Page 188] sole judge. There are other claims upon him and his property, besides those of his children. His property is subjected, civil­ly, to all claims of right, both of the pub­lic and of individuals, with whom be may be connected. It is subjected to other claims of a moral nature, of which he is, likewise, the sole judge. He may think it his duty to give some of his property for public use, or for the encouragement of virtue, the reward of humanity, or exem­plary instances of filial piety. It is sub­ject, during his life, to his occasions, natu­ral, civil, and moral; and a disposition, to take effect after his death, is no more in­consistent with the right of the children, than a transfer while he is living. In such dispositions, the parent may misjudge; he may have done wrong; but it is, generally, an affair of too much delicacy, to endure the decision of the civil law.

After the death of the parent, when his rights are finished, and the just claims of others answered, the children have an e­qual claim, and equal right, in the prop­erty of their common ancestor. If nature dictate any preference, it is in favor of the younger, and not of the elder branches. I [...] appears not unreasonable, that, when a­ny of the children have been left, in a state of he pless infancy, the common property [Page 189] of the parent should assist in making that provision for their support and education, which the parent, were he alive, would consider, not as an advancement, but an indispensible duty of nature,

Thus from a careful examination of the right of descents, upon natural principles, we find no intimation of the right of pri­mogeniture, no preference in successions, but those, which tend to an equal enjoy­ment of the goods of fortune. We may repeat it, that the equal laws of nature, if rightly understood and practised in a gov­ernment, tend to prevent, or correct every dangerous excess. The more we exam­ine these laws, the more will appear their coincidence with the nicest moral feelings of the human heart, and the genuine prin­ciples of equal laws and government.

SECTION I. Of the Right of Punishment.

THE right to punish individuals for crimes against society, is not an arbitrary institution of civil policy, nor is it origin­ally, and independently inherent, in any particular [Page 191] organ of government. It is founded in the moral and social nature of man, and is de­rived to government through that chan­nel. We have already seen, that man was not formed for individual independence, but for society, for civil union in govern­ment. All the liberty of an individual, all his right, which can affect the rights and liberties of others, is placed in an ac­commodation, a mutual compromise with the rights and liberties of all, and every member of the society. To facilitate this accommodation, and to render a compro­mise of rights practicable, mutual, and safe, is the great object of all civil institutions and laws.

If man be by nature a social being, it is an obvious conclusion, that it is his duty to forbear to injure the society, of which he is a member; and that the violation of this duty is a violation of the laws of his nature. It may here, perhaps, be thought sufficient to say, that rights and duties are reciprocal; every society must have a right correspond­ing with the duty of the individual; if the individual violate his duty to the society, the society have clearly a right to take sa­tisfaction. But, as this subject is of great importance in national jurisprudence, I shall be more particular in the investigation, by attempting to analise the right, and trace it to its source in the nature of man.

[Page 192]Deity, in the constitution of nature, has not done every thing for man. He has established certain relations, from which result the laws, which ought to govern, both moral and social actions. He has given man powers and faculties, for disco­vering these relations, and the laws, which result from them. The mode of giving these laws their full effect, is left to his sagacity, to the exercise of his reasoning powers. This is not all. To enable him more steadily to pursue them, and to give them a greater effect, he is furnished with a sense of right and wrong, and a sense of merit and demerit, attending the observ­ance or non-observance; the moral sense, and the sense of accountability. These senses, when rightly informed, extend their authority to every moral, every social, and every civil action. Hence, on the perpe­tration of a crime, arise in the mind of the perpetrator the feelings of guilt, and a consciousness of a desert of punishment. These sentiments are common to men, both in a review of their actions, and in passing judgment upon the actions of others. What might at first seem to contradict that universal desire of happiness, which goes to the nature of every individual, is, that guilt is, sometimes, attended with a strong desire of punishment. This is what we, [Page 193] generally, call remorse. If punishment be inflicted by no other hand, self punish­ment is well known to be the gratifica­tion provided by nature, for the violent emotion of remorse. From this view of the subject, the right of punishing the guilty, is clearly perceived to be derived from the relations of men in society. It was not alone from an extraordinary im­pression of the divine anger on the mind of Cain, after the murder of his brother, but from a perception of these relations, and a right resulting from them, that he is made to say, "Whoso findeth me shall slay me."

The Marquis Beccaria has founded the right of punishment, on the same princi­ples. ‘Let us (says he) consult the human heart; and there we shall find the foun­dation of the sovereign's right to punish; for no advantage in civil policy can be lasting, which is not founded in the inde­lible sentiments of the heart of man. ^*’

In cases of mere private injury, the right is perceived to belong to the party injured. He has a right to demand reparation for the injury, and a caution against the like injury in future. The mode of obtaining both is to be regulated by a consideration of the present nature of social rights. [Page 194] Where the right cannot be exercised, by the party injured, without danger to the social rights of others, the laws of social nature dictate a submission to an impartial tribunal: a provision, which can be made, and enforced, in the union of civil society only. When a person is guilty of a viola­tion of those social rights, which more im­mediately affect the interest and happiness of the whole, the right of demanding re­paration and caution is perceived to belong to the community. The perception is fa­cilitated, by means of the social sense, mentioned in a former sketch; the sense, by which each member perceives a kind of individuality in the whole, comprehending himself.

In a state of any considerable degree of social and civil improvement, men endure with reluctance the exercise of the right of punishment, by the party injured. This happens, not because men are more unfit, in this state, for the exercise; but because they have a nicer sense of right and wrong. Their social feelings are extended and re­fined. The security and happiness of each individual member, becomes the interest, as it affects the happiness of the whole. They perceive, not only the inhumanity, to which the practice tends, but the injustice of which it is, in almost every instance, [Page 195] productive. They perceive, that the pow­er of punishing can, in almost no case, be exercised by the party injured, without a perpetual violation of other's rights, of the obligations of morality, and the danger of a total annihilation of social happiness. Hence it becomes, the right, interest, and duty of every civil community, to punish by way of caution, all those injuries which disturb, or tend to disturb their happiness, or to render it insecure. And it will ex­tend to whatever the common sentiment has connected with the public happiness. It is evident then, that the appropriate right of government, to punish, by way of caution, the crimes of its members, is not an arbitrary institution of civil society, nor does it originate in necessity only; but in the sentiments of the human heart, the existing relations of men in society, and has the full sanction of the laws of nature.

The organ, by which the right of pun­ishment shall be exercised in government, is a consideration of propriety, safety, and convenience. A flight attention to the subject, will discover it to be a branch of the right of legislation, or in propriety ul­timately connected with the duties of that branch. Without the right of punish­ment for the violation of a law, the right of legislation would be perfectly nugatory.

[Page 196]There is a threefold division of the right of punishment, or rather of the exercise of the right, corresponding with the general division of the powers of government. [...] 1. The decreeing of penalties, which shall be incurred by the breach of any law. This involves a consideration of the importance of the law, to the interests of the state, and corresponds with the right of legisla­tion. To that branch therefore, it will, with propriety, be intrusted. 2. The ap­plication of the law to particular cases, for the purpose of determining whether it has been violated, and who has incurred the penalty. This is clearly, the proper business of the judiciary. 3. The execu­tion of the sentence upon the criminal, which falls to the province of the execu­tive.

The right of punishing is, in practice, frequently limited, only by the will of the legislature, and the decisions of the judicia­ry; but the laws of nature have not left it arbitrary. They have assigned certain limits, beyond which the right ceases, and the exercise of the power becomes a crime against society. These limits are not, in every sense, permanent and invariable. It is universally true, that it is limited by the end of preventing crimes, and securing obedience to the laws. It is also true, that [Page 197] the penalties, which, in one state of socie­ty and manners, are adequate to that end, may, in a different state, be wholly inad­equate.

Not only the state of manners, but the principles of the government affect the se­verity of punishments. Where the support of the reigning powers, without any regard to the good of the people, is the sole end of every measure of state, fear, which is in­culcated by the severity of punishments, is the only principle of obedience. Such governments admit of limits, neither to crimes, nor to the severity of punishments. No actions are considered to be criminal, because they are injurious to the people, or even against the laws of nature; but because they are conceived to be danger­ous to the reigning power, and a contempt of its authority. In proportion as govern­ments have ascended to natural principles, and made the happiness of the people the end of their institutions, crimes and punish­ments have admitted of more definite lim­its. It has been perceived and acknow­leged, that, in a civil view, those actions only are criminal, which are injurious to the community, or to individuals, whose rights and happiness the community is bound to protect, and secure; that the prevention of crimes is the sole end of [Page 198] punishments; and that all beyond this is the spirit of revenge, or of wanton cruelty.

It is worthy of remark, that in the pro­gress of society, no science has received so little improvement as that of criminal juris­prudence. ^* It is true, that many circum­stances of outrageous violence, with which capital and other punishments were inflict­ed, have, in some nations, been abolished; but it may, with equal truth, be observed, that among those nations, who boast the highest refinement, the greatest degree of improvement in their civil policy, the number of capital punishments, has been increased out of all proportion to the re­form in point of cruelty. The British go­vernment, which in civil improvements, and the humanity of its laws, has gone beyond most other European nations, has proceeded with a degree of wantonness, in the enacting of capital punishments. One hundred and sixty crimes, declared to be worthy of immediate death, hardly com­plete the murderous catalogue.

Several causes have concurred to prevent any considerable improvement in the crim­inal code. Men appear, often, to have entertained an idea of justice, as of a phy­sical [Page 199] power, or something which really ex­ists; ^* whereas, it is only the result of certain relations. Civil justice results wholly from the relations of men in civil society. Beyond these it has no relation, nor even mental existence. This notion has done infinite mischief in the world. It has represented justice, as really offended, in proportion to the crime committed, and inexorably demanding satisfaction by a certain, determinate punishment to be in­flicted on the offender; like the malevo­lent deities of some nations, who are to be conciliated with human sacrifices only. By considering a satisfaction to justice as the principal end of punishment, and dis­regarding its utility to society, the only safe and certain criterion of the real justice and propriety of any class of civil or social actions, it has served to reconcile people, in other respects, of a refined sensibility, to an excess of cruelty, in the enacting, and in the execution of laws.

A punishment annexed to a crime is, by the force of habitual association, viewed in connexion with the crime, and often serves as a measure for the degree of its guilt, which arises only from its relation to soci­ety. When, from any cause, the perpe­tration of a particular species of crimes [Page 200] has become frequent, the minds of legisla­tors are irritated against the perpet [...]tors, and against the crime. Determined to ap­ply an effectual remedy, they are too prone, without adverting to the caus [...] [...] the evil, to enhance the penalty, which soon becomes a new measure for the guilt of the crime.

It is, however, for the interest of hu­manity, an excellent disposition of Provi­dence, that in a state of any considerable degree of refinement, sanguinary laws al­ways defeat the end of their institution. If the penalty annexe [...] [...] the law, to a crime, rise above the demerit of the crime, in the estimation of the people, whose sentiments are in this case the best criterion, the law is rarely executed. Humanity, whose dictates are more readily obeyed, than the requisitions of law, is interested in the escape, or acquital of the criminal. When the severity of the punishment ex­cites the pity of the people, the effect of punishment is more than lost. While they pity the criminal, they forget his crime, or diminish its guilt, and conceive an ab­hor [...]ence of the law. If the criminal be detected, and condemned, he is viewed as unfortunate, rather than guilty.

From an attention to the state of crime [...] in different societies, we shall find, that▪ [Page 201] in those governments, whose legislators have [...]welled the list of capital offences, and by applying the same ultimate punish­ment to crimes of very different dyes, have confounded all degrees of guilt, the same crimes are more frequently commit­ted, than in those governments, where the laws are enacted with more mildness, and different degrees of guilt distinguished by different degrees of punishment. The punishment ought never to exceed, but rather to fall short of the demerit of the crime in the sentiments of the people. Where this is the case, humanity is engag­ed on the side of the laws, and punishment is rendered as certain, as the perpetration of the crime. This adds a mild, but effec­tual and irresistable energy to the execu­tion of the laws. It is universally true, that certainty of punishment has a much more powerful effect, than severity, in the prevention of crimes. Indeed, the resent­ment and contempt of mankind, which always pursue the perpetrators of a crime, if not converted into compassion, by the severity of the law, constitute a punishment of no inconsiderable efficacy.

I add, with entire satisfaction, that in no government, is a certain degree of mild­ness more requisite, in none is it more ef­fectual, to the prevention of crimes, than [Page 202] in a democratic republic. An equible mo­deration in punishment, while it exhibits the powers of government, in the amiable light of humanity, cherishes and envigorates the only efficient principle in such repub­lic, a sentimental attachment to its institu­tions and laws.

SECTION II. Of the Right of Taxation.

THE Right of Taxation is, no more than the right of punishment, an arbitrary institution of civil policy, or originally and independently inherent in any particular organ of the government. Wherever it is placed, it is a betrusted right. The right itself, like all legitimate, social, and civil rights, is derived from the relations of men in society.

It is perceived, even by the most simple, that from the relations of men in civil socie­ty, there results a duty upon them, not on­ly to forbear to injure the society, but also to contribute to its support, and prosperity. The social sense, which has several times been mentioned, has no inconsiderable ef­fect [Page 203] in rendering the perception distinct, and in collecting and fixing the object of this duty. The duty may be called, the duty of contribution on the one hand, from which, on the other, results to the society the right of taxation. The right of taxation is nothing more than a right to enforce the duty of contribution, to which every member of the community is originally bound. The duty and the right, wherever it resides, are reciprocal. The duty is the same upon every individ­ual member, as to the reality, not as to the quantity of the contribution.

No civil duty, perhaps, can less be trust­ed to the voluntary conduct of individuals. None more needs a provision of general rules, to secure equal justice, both to indi­viduals and to the community. The utility of the community cannot be opposed to the utility of the individual members in gen­eral. Nevertheless the latter, from its be­ing more immediate, so far outweighs the former, that they are often viewed in op­position. The duty, therefore, would ne­ver be performed, unless there existed, somewhere, a right, with authority to en­force it, as well as to apportion the quan­tity. The end of this duty is the utility of the community; not indeed, in an ab­solute sense; but in a certain relation, pro­portion [Page 204] and agreement with the utility of individuals.

The right of apportioning and enforcing this duty, which is the right of taxation, is originally, in the community, considered as an aggregate body. The organ, by which it shall be exercised, is, as in the case of punishment, a consideration of pro­priety, convenience, and safety. The ap­portionment must be made by general and equal rules, and the demand enforced by the sanctions of law. It is, therefore, with propriety and convenience entrusted to the legislative body. If such body be compo­sed of a full and equal representation of the several national, as well as particular interests, the betrustment is safe. The power and right of taxation can be entrus­ted to no man, or body of men, who are not amenable to the people for the exer­cise, and who do not equally share the burdens, which they impose, without a mo­ral certainty, of oppression, the total sub­version of liberty, and all security of pri­vate property. Thus it comes out, that the great question about taxation and rep­resentation, is a question about modes, ra­ther than rights; a mere consideration of safety to the rights of the people. It is indeed, a most important consideration; but it does not reach the original right, [Page 205] founded in the duty of contribution. The representation of any part in the national legislature, is a proof of an intimate civil connexion, which undoubtedly subjects them to the duty of contribution; but if the people chuse to entrust the right of taxation, in any other mode, or to any other body, the exercise may be equally legitimate.

It is not easy, perhaps, to ascertain with precision, what degree of social union, among individuals, will incur the duty of contribution. It is, however, clear, that one community can have no right to tax, personally, the members of another com­munity, where the citizens of both are not united ultimately, by an internal, recipro­cal, civil connexion. States in league may, as far as the league extends, incur, one to the other, the duty of contribution; but the duty is demandable against the States collectively, not against particular members Each state has a demand against the other, and the several states have a demand against their citizens individually, to enable them to fulfil their engagements. Between the several states, the right to enforce the duty resides equally in every part, till, by mutual agreement, a body is formed for its exercise. Till this has taken place, it remains, like that of independent [Page 206] individuals, a voluntary duty; or to be enforced only by an appeal to the law of nations—the right of the sword.

So different are the interests, both gen­eral and particular, in different states, that no universal rules can be prescribed, as to the particular mode of taxation, which shall be equally applicable to all. It will ever be a consideration of public convenience and private equity. The lawful interest of no citizen, or class of citizens, can, without injustice, and a violation of equal rights, be sacrificed to that of another, or even to that of the whole. That mode ought to be adopted, which, as far as general rules can extend, will operate agreeably to the principles of mutual com­promise. A rule, very general, indeed, which has been applied in ethics, may, with great propriety, be applied in this case. Requisition shall be made of a man, ac­cording to that, which he hath, and not according to that, which he hath not. Taxes, therefore ought not to be appor­tioned upon persons, but upon things; upon property possessed or used by indivi­duals. Its valuation, however, ought not to be according to the estimated value in market, but according to the ordinary re­venue, which it may afford.

It has been usual to apportion taxes upon [Page 207] a valuation of the property or thing taxed. This will be just and equal, provided the valuation be made, not according to the market rates, but according to the income, which it may produce, with ordinary man­agement. There are yet some exceptions, which will occur in their place.

Protection has, by many, been held, to be the consideration, on the one side, in which is founded the right of taxation, on the other. If it were so, protection should serve as a measure for the apportionment of taxes to individuals. But this is not the case. The duty of contribution, and consequently the right of taxation, arises from the whole relations, in which men stand in society. The same thing is true of every civil right and duty. The gene­ral relations are connected, and form a certain internal relation among themselves. If we take away one relation, it deranges the connection, varies the mutual relations, and, of course, the result. In those gov­ernments, in which the rights of the sove­reign are supposed to be original, and inde­pendent of the rights of the people, it is in perfect consistency with the principles of the government, to derive the sovereign's right of taxation from the protection af­forded to the subject, as a consideration. Where, as in democratic republics, those [Page 208] who exercise the sovereign power, are only constituted organs, and exercise only the power of the people associated in civil gov­ernment, the consideration between the sovereign and the people does not exist. The sovereign power, the whole right, is the power and the right of the people, thus associated, not individually, but col­lectively.

It is very true, that the laws of nature, from which result all legitimate civil rights and duties, are always calculated to attain some useful end; but the useful end to be attained, is the criterion, by which to judge of their authenticity, rather, than the con­sideration, or foundation of the duty im­posed; the final, not the efficient cause. The right of the citizen to civil protection, is independent of any such consideration; and any apportionment of taxes, upon that principle, would be grosly unequal, and oppressive. It would make the poor and the weak the greatest debtors to the state, for contributors they could not be. It would, at once, be destructive of itself, by turning protection into oppression.

The consideration of abstract relations, and abstract rights, fabrications of the mind only, which may, or may not, justly comprehend the relations and rights of na­ture, and are, perhaps, never precisely the [Page 209] same, in the conception of any two indi­viduals, cannot furnish sufficient data for the apportionment of takes. It is necessary to find something more fixed and certain, and to take real quantities, as well in the data as in the product.

The only plausible theory, and which is capable of being reduced to practice, by the application of real quantities, is, that every individual in any community shall contribute to its support, in proportion to his enjoyments, as a member of that com­munity. In this, however, no regard is to be had to mental, but to apparent and sensible enjoyments. Upon this principle the possession, and the use of property be­come the data for apportioning taxes to in­dividuals. I have added the use, which will comprehend the consumption, at least beyond what is common and necessary to every class; because some will place the enjoyment in the use of consumption, ra­ther than of profit in the possession. They may chuse, while others hoard or use for profit, to spend their acquisitions in the gratification of their passions and appetites.

Taxes ought to be assessed according to a general valuation. This mode will be subject [...]o some inequalities; but the ine­qualities will not be greater, than what will always, happen in particular assess­ments. [Page 210] If taxes should happen to fall more equally in the latter mode, yet they have, in the former, great advantages, from be­ing known and certain; a very important consideration in the levying of taxes. It is, perhaps, a consideration of equal weight, that men are, generally, less dissatisfied with the inequalities of fortune, than those, which are imposed upon them by the ig­norance, prejudice, or caprice of their fellow citizens. If, from the nature and situation of any species of property, which is a subject of taxation, great inequalities will unavoidably intervene, such property should be taxed with a degree of modera­tion proportioned to the inequality. It is a great alleviation, in such cases, that none are oppressively overburthened, though some may pay less than their just propor­tion.

Taxes ought not only to be equal, but, as far as the reasonable exigencies of the state require, and general rules can extend, to be apportioned to the visible means of the citizens, both collectively and indivi­dually. This, however, must be under­stood with some limitation. They ought not to be apportioned upon the means of living, but upon the means of payment, or what, on an ordinary calculation, ought to be the means of payment. This object [Page 211] can be attained only by an extensive know­lege of the different interests, employments, modes, and necessary expence of living, with the different classes of citizens. With such knowlege the legislators may, in the general mode of valuation, and with a par­ticular attention to the subjects of taxation, in a great measure, if not altogether, ex­empt from the burden of taxes, the ne­cessary means of subsistence to the p [...]orer class of citizens, who, though they may contribute nothing, directly, to the support of government, are far from being the least useful class in the state.

The exigences of the state must limit the aggregate sum to be demanded in taxes. But the demand ought never, for any continuance, to equal the sum of pri­vate revenues; much less ought it to be suffered to diminish the capital stock. Were government, by thus anticipating the revenue of its citizens, to deprive them of every comfortable prospect in a provi­sion for the future, it would take away all incitement to enterprize, and even the spirit of private industry and economy. If in addition to this, the enormity of the de­mand, should constantly diminish the cap­ital stock, nothing would be presented to view, but the gloomy prospect of inevita­ble poverty and distress; a situation in [Page 212] which a government cannot long subsist, without the most violent commotions. The same observations will apply to those burthen [...], which, I through the unequal mode of apportionment, fall upon particu­lar classes only.

The mode of apportionment, ought not to be directed by any single class of citi­zens, but by the interest of the whole, which consists in a certain ratio of the par­ticular interests. If in the political consi­deration of taxes, the interest of the state, by which is generally meant, nothing more, than the interest of the majority, comes in competition with the interest of any class of the citizens, in their lawful pursuits, their interest ought not to be wholly sac­rifised to that of the state, much less to that of another class. Every affair of this nature should be conducted upon the prin­ciples of a compromise of interests. In adjusting the compromise, however, the magnitude of the interests in competition is not to be adopted as the only rule of preference: Such rule would frequently prove a total sacrifice of the minor interest. Where it is demanded of particular per­sons or classes that they give up their in­terest for public service, they are as fully, as in causes which arise in cases between individuals only, entitled to a compensa­tion [Page 213] for all that, which exceeds their par­ticular proportion. Such interferences will, however, rarely happen, unless taxa­tion is applied to other purposes, than those merely of raising a public revenue.

In modern times taxes, besides their fi­nancical purposes, have been employed as a principal engine of state, for directing the industry of the citizens into those par­ticular channels of arts, manufactures, or commerce, which are deemed to be most for the present interest of the community. A British writer observes, that ‘taxes may be so contrived, as to rival bounties, in promoting industry, manufactures, and commerce. ^*’ That they can have the effect to promote industry in general, is not very obvious. They may certainly be so contrived, as to promote it in particular channels; but perhaps, this is generally, if not always, done, by diverting it from others.

The application of taxes, to these pur­poses may, within certain limits, be high­ly beneficial to a community. Nations do not always make equal progress in those arts, which furnish the necessaries, con­veniencies, and elegancies of life. Some­times permanent, but commonly accident­al, and temporary causes have directed [Page 214] their industry into different channels. Habits of life, de [...]terity in old occupa­tions, unskilfulness and the risk of failure in those, which are new, frequently prevent or delay the introducton of the most use­ful arts. Where this is the case, it may be a happy contrivance to exempt the home productions of a manufacture from taxes, and to impose a duty upon foreign productions of the same kind. It may enable the home manufacturer, by the ad­vanced price of his goods, to indemnify himself, in a good measure, for the risk and expence of a new undertaking. But it is easily perceived, that in a regulation of this kind, whatever the manufacturer gains by the advanced price of his goods, is real­ly a tax upon the consumer; and as it has a tendency to exclude competitors, it is necessary to proceed with caution, lest it degenerate into a system of monopoly, one of the greatest evils in civil policy. there is, likewise, danger lest those, who are already engaged in lawful pursuits, and entitled to equal right, though, perhaps, not to equal favor, should, by an over burden, be too much deprived of their rea­sonable gains, and, perhaps, be too hastily forced into different pursuits, without the same prospect of an indemnification for their risk and experience. I believe, it [Page 215] not unfrequently happens, that from a zeal for new improvement, and a too sanguine expectation of their public utility, old employments are burdened out of propor­tion to any advantage, which may be deriv­ed from the new.

The limits of these sketches do not per­mit me to enter into a detail upon this sub­ject. My object is only general principles. Those who wish to see the justice and policy of different kinds of taxes fully investigat­ed, will find an excellent treatise upon this subject in Dr. Smith's enquiry into the nature and causes of the wealth of nations.

SECTION I. Judge Blackstone's opinion examined. — Civil Laws are binding on Conscience, when they accord with the principles of a Free Government, and the present state of Social Improvements.

THE learned Judge Blackstone, in his Commentaries says, ‘It hath been holden, and very justly, by the principal of our ethical writers, that human laws are bind­ing on men's consciences.’ But after­wards he says, ‘True as this principle is, it must be understood with some restrictions. It holds, I apprehend, as to rights: and that when the law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or in­vade. So also, in regard to natural du­ties, and such offences, as are maloe in se. ^* Here we are bound in conscience, be­cause [Page 217] we are bound by superior laws, before those human laws were in being, to perform the one, and to abstain from the other. But in regard to those laws, which enjoin only positive duties, and forbid only such things, which are not mala in se, but mala prohibita ^* merely, annexing a penalty to the non-compliance, here I apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws. For otherwise the multitude of penal laws in a state, would not only be looked upon as impolitic, but would also be a very wicked thing, if every breach of such laws were made a snare for men's consciences. But in these cases, the alternative is offered to every man, either to do this, or submit to the penalty, and his conscience is safe, which ever side of the alternative he sees fit to take.’

Judge Blackstone seems to have been drawn into this conclusion from the state of criminal law in Great-Britain. It was not his design to improve the laws of Eng­land; but to facilitate the study; not to write a criticism, or examine their merits, but to give the elements of a system, which was already formed. Had his subject led him to a close attention to the nature of [Page 218] laws, as [...]ounded in the principles of society, in a free government, & the only end, which can be admitted in penal laws, he would probably have found reason for a different opinion; especially, as far as respects the performance of those positive duties, which the general good of a well constituted so­ciety, in civil government, requires.

We have before seen, that man was formed for a state of civil government, and furnished with a disposition and principles which both allure and impel him to that state. Government may be originally form­ed upon different models; and each, in a course of improvement, may receive many and great alterations. There are, however, principles common to all, arising from their general nature. From a variety of circumstances, situation of country, and different degrees of improvement, in arts, sciences, and manners, they may have particular principles arising from the par­ticular nature of each.

When any individual acts in conformity to the laws of his nature, as constituted by the author of his being, taking in all con­nexions and dependencies, for every thing is relative, nothing stands alone, the actions of that individual are right and fit; so far as he deviates from those laws, they are wrong, or vicious. From the nature of man, it is impossible, that a society should, [Page 219] like an individual direct its actions by any common united volition. It must be done by rules or laws, by which the actions of every individual, as they concern the so­ciety at large, are to be directed. The same criterion holds here, as in the case of an individual. Those actions are right in any society, constituted upon natural principles, which are conformable to the principles and nature of that society. The actions of a society, which we call civil or political actions, are made up of the actions of indi­vidual members. It therefore clearly fol­lows, that those are good laws, which re­quire such actions of individuals as, taken together in all their connexions, are con­formable to the principles and nature of the society; and those are bad laws, which deviate from this end. ^* Let it be observ­ed here, that under action I comprehend both performance and forbearance.

Judge Blackstone, in another passage, defines municipal law to be, "a rule of civil conduct, commanding what is right, [Page 220] and prohibiting what is wrong." ^† If laws command or prohibit that, which is abso­lutely indifferent to the state, they deviate from the true spirit and principles of legis­lation in a free government. They are arbitrary. They agree not with the defi­nition, which is a good one, of "com­manding what is right, and prohibiting what is wrong." If they go farther, and command the violation, or forbid the per­formance of any moral duty, they become tyrannically unjust. In the former instance, instead of feeling an obligation, we feel ourselves insulted; in the latter we are filled with the utmost abhorrence of the laws. When laws coincide with the principles above laid down, when they fully agree with the above definition, they are strictly binding on the consciences of men. They ought not to allow themselves an alterna­tive.

The objection, that in this light the mul­tiplicity of penal laws would become a snare for men's consciences, does not appear to me to be well founded. It lies with equal weight against the moral obligation to the greater part of social duties. Previ­ous [Page 221] to a state of society, if man may be supposed ever to have existed in such state, the duties of the solitary individual must have been very few and simple. In the first stages of society, in a simple state of property, and a state of manners no less simple, duties must be confined within very narrow limits. Still they would greatly exceed those of the solitary individual. In the progress of society, the complex state of property, great improvements, numer­ous connections, and extensive intercourse, introduce a great variety of social duties. These are left to be discovered, as the result of situation, circumstances, and relations; nor is the [...] discovery and performance thought to be a task too difficult. In mat­ters which become the subject of civil laws, the case is easier. Many actions are con­sidered as evil, only when they are forbid­den. Hence the duty of individuals arises on the requisition of the law, and is ex­plained in the law itself. We are not, however, to suppose, that civil laws consti­tute the ultimate fitness or morality of ac­tions, in a strict sense; but as an individual may allow others to reap advantage from the use of his property, so government may allow the individual members to do those things for their private advantage, which it is fitting should be the right of the pub­lic. [Page 222] In the former case, if the individual prohibit to others the farther use of his property, it is their duty to forbear; to persist in the use, will become a private injury. In the latter, if government pro­hibit the doing of those things for private advantage, which, though before allowa­ble, by tacit consent, yet come within the claim and right of the public, the actions, for prohibited become wrong; morally so. It is to be observed here, that we are upon general rules or laws, and that the right of government is the right of the whole, not of any particular class, as distinct from the people.

To erect crimes upon actions wholly indifferent to society; to gratify the pride and caprice of one class of citizens, by al­lowing them what is forbidden to others; to inflict penalties to support a system of monopoly, or for fiscal purposes rather, then the purpose of preventing crimes, is to confound every idea of right and wrong in a criminal code. All this is to be found in a great variety of instances, in the laws of England. We need to instance only in the forest laws, the laws for the preserva­tion of the game, and the penalties for not burying in woolen. In such cases, un­able to find any moral restraint, men learn to make a distinction, between what is [Page 223] morally, and what is only politically wrong Amid a great variety of laws, some arbitrary and some not, their minds are wearied with discriminations. They will readily adopt the distinction made a­bove, and refer the violation of the prim­ary duties in government, to the class of mala in se; the others to the class of mata prohibita. Probably, however, no two persons in any government would agree in classing.

Few actions, considered simply, are evil in themselves. They are relatively good or bad. They take their qualities from situation and circumstances. Reverence to the Supreme Being is, unchangeably, a duty. Such duties, however important, are few in number. Most actions of men are of the former kind. Murder for in­stance is one of the most heinous crimes in society. Yet to kill a man is not always wrong. To kill one, who by violence and wrong attempts my life, is, when the only probable means of saving it, in fact justifiable. We conceive an officer to do his duty, when he executes a criminal condemned to death, by the sentence of the laws. Should a private person, with­out authority, kill a criminal, though un­der a legal and just sentence of death, be would, by common consent, as well as by [Page 224] the laws of the land, be deemed guilty of murder. In every country, in the early stages of society, when any person is mur­dered, it is held to be the duty of the next of kin to avenge the blood of the st [...]in, to put the man-slayer to death. This, in the ruder state of men in society, is right. It is, in such state, the only known, or prac­ticable made of punishment, or mean of restraint. In the progress of social im­provement, this mode of punishment is accompanied with evils, which tend to sap the very foundation of society, and dissolve every bond of general union. The sole right therefore, of judging and punishing offenders, for the prevention of crimes, is at length entrusted with government. I [...] then becomes a crime in the kindred, who had been called the avengers of blood, to attempt such punishment, by their own authority. These are instances, in which, not only the political, if I may use the ex­pression, but the moral quality of the ac­tion is altered, and even reversed, by a change of social and political circumstan­ces. If those only are to be esteemed na­tural duties, which arise antecedently to society, and idependently of any relation to it, and their violation offences mala in se; they will be found, not only few in number, but the greater part will be found [Page 225] to be unnoticed by municipal laws, as be­ing sufficiently guarded by the moral sense and the common principles of humanity. The principal of these are the duties of re­ligion and self-preservation; and though men are to be protected and secured in the observance of these duties, the observance cannot be enforced by human laws.

The laws of nature are not thus limited. When applied to man, the laws of nature are the laws of social nature. As, I have before shewn, man is formed for a state of society and civil government. He is fur­nished with appetites, passions, and facul­ties, which in no other state have either gratification or use. In society, in civil society only, can man act agreeably to the laws of his nature. It is the state pointed out in his formation; the state, to which most of his passions, appetites, faculties, and powers are directed. It is, in truth, his ultimate state of nature. The more perfect this state is, the more it harmonizes with the whole state of man; or rather, the more general operation it gives to the laws of his nature.

If society and civil government be founded in natural principles, the laws, which naturally and certainly result from such state, are laws of nature. There are certain principles, and relations, which are [Page 226] common to all societies, and governments, in the earliest and rudest state, and contin­ue unchanged, through every successive degree of improvement. From these principles and relations result laws and duties, which, with one consent, are deno­mominated, by way of eminence, laws of nature and natural duties. This eminence they have derived from their permanency and universality. In the progress of soci­ety, in the natural course of improvement, new and different connexions are formed; new principles and new relations arise. Hence result new laws, and a different class of duties. These laws and these du­ties will vary, or rather, they will exist in one society, and not in another, according to the various degrees of improvement in each. Still if they result from princi­ples, relations, and connexions, which arise in a natural course of improvement, they are, with the former, equally laws of nature, and natural duties. They both, in fact, result from a state of society, the natural state of man. Human laws, ^* founded in these principles, as they arise in society will have the force of moral obligation. Arbitrary laws; laws, which violate the principles of the society, for which they [Page 227] were made, will be obeyed with reluctance. Obedience, in such cases, will, sometimes, be considered as a matter of prudence, nev­er as a matter of conscience.

Men would be in a deplorable condition, if the moral sense enforced obedience, alike, to every act of legislation. The worst laws, when once enacted, would be receiv­ed with a degree of veneration. The fa­cility of execution would supersede the necessity of repeated examination, and fre­quent recurrence to the principles of the government, and the rights, interest, and sentiments of the people, without which the best intentions of a legislature, can afford no security against the danger of tyrannical laws.

SECTION II. Different Modes, in which Obligation is sometimes discovered—have concurred to introduce a Distinction between moral and civil Obligation.

IT is not, perhaps, difficult to account for the different views, which have been entertained of civil and moral obligation. [Page 228] The nature and principles of a government may be such as to confound many moral and natural relations. In the best consti­tuted governments, men may be led to conceive a difference between moral and civil obligation, from the different modes, which they, sometimes, necessarily take to attain the knowlege of public and private duties. The mode of discovery is fre­quently different; but the efficient cause of obligation, is, in both, the same.

In all cases, the efficient cause of moral obligation arises from the relations, gene­ral and particular, in which man is placed; the sense, by which he discerns these rela­tions, and a perception of the duty thence resulting.

The utility of the action to be perform­ed, is not the efficient, but the smal cause, the end, for which the duty is imposed. These are not set at variance, but in per­fect harmony. Hence it is, that the gen­eral tendency of any class of actions be­comes a safe criterion to decide, whether the performance or forbearance be a du­ty.

The approbation, which a person feels, of his own conduct, arises from a direct perception of right in his actions, or, that they coincide with his duty. As a social being, he finds the pleasure enhanced, [Page 229] from a perception of their utility to society. The utility, which arises to society from his actions, becomes a practical proof of the justness of his moral perceptions, and a farther confirmation of his duty. In the common actions of life, the duty is discov­ered by a direct perception. This is not always the case, in the more general and extensive concerns of social and civil life. The situation is too intricate, the relations too numerous to be at once discovered and comprehended by a direct perception. This often happens in the enacting of laws, particularly in those situations, which oc­cur, in the more active and complicated scenes of civil society. The complicated and various, existing relations, the result of which ought to point out the duty to be imposed, or the class of actions to be re­quired, are not to be discovered and arrang­ed with ease or certainty, by any direct contemplation. It therefore becomes the principal business of the legislator, to resort to consequences, to examine the probable operation of the law proposed, the utility of the action to be required, as the only safe criterion, where the result of the existing relations is not obvious to a direct percep­tion. If he can discover the actions in­tended to be required, to be useful in their general tendency, in a civil, social, and [Page 230] moral view, he may rest assured, that they will partake of the nature of original, mo­ral obligation; for moral obligation, and final, social, and civil utility, ever coincide. The mind, however, frequently occupied with considerations of utility, is apt to rest satisfied, without seeking any farther grounds of obligation. This has doubtless concurred with other causes, to introduce the distinction attempted by our learned author.

SECTION III. That Punishments will have little Effect in the Prevention of Crimes, unless the Laws are so calculated, that Civil and Moral Obligation coincide.

THE sole end of punishment is, or cer­tainly ought to be, the prevention of crimes. Under crimes, I comprehend, not only the doing of those things, which are directly detrimental, but the omission of those, which are necessary for the support and happiness of the community. For if man be a social being, it clearly follows, that he is bound, not only to forbear injuries to the [Page 231] society, but to contribute an [...]qual share to its support and happiness. It is not an obligation, arising from necessity merely. It is an original indispensible duty.

We have seen, that Deity has, by the strongest and most intimate relation, the relation of cause and effect, connected happiness with the virtuous actions of moral agents, misery with their vices. These are the rewards and punishments, in the gov­ernment of Providence. To this system, as we have seen, man, by the original con­stitution of his nature, is admirably adapted. He is furnished with a moral sense, by which he perceives the right and the wrong of his actions. He is also furnished with an appetite for the approbation of others. He has, consequently, a dread of their censure. Thus he finds himself ac­countable for his actions. When he per­ceives them to be right, he is intuitively conscious, that he is deserving of appro­bation, when wrong, of censure, or punish­ment. In the same manner he judges of the actions of others.

To this constitution of nature, all civil laws, and political institutions ought to be adapted. This alone can produce and support a coincidence between civil and moral obligation. Upon no other princi­ples will punishments be perceived to be [Page 232] just and right. Upon no other principles can they have a salutary effect on the dis­positions, life, and manners of men.

If, in a government, the laws constitute crimes of actions indifferent to the good of society, or require, that, which, in general, is detrimental, fear can be the only motive for the observance. In the case of a non-observance, there may be an apprehension of punishment, but there will be no con­sciousness of desert. The suffering delin­quent will consider himself, not as guilty, but unfortunate. Others will consider him in the same light. They will be dis­posed rather to pity his misfortune than to censure his conduct, unless it be for a de­gree of impudence. In such case, punish­ment tends not to a general or particular prevention of crimes, by a sentimental re­formation, the only end, which can justify punishments inflicted by human laws. The direct tendency of such arbitrary laws is to introduce sophistical evasions, and to confound every idea of social duty.

The opinion that such arbitrary laws, for they certainly merit no better appella­tion, are admissible in government, affords a pretext, for considering all laws in the same point of view, and referring all social obligation to authority, not to right. The pernicious consequences are obvious.

[Page 233]It is true that from the weakness of le­gislators, from their ignorance, and even from their knowlege, which may have thrown mankind at a distance, laws will, sometimes, be adopted, which are not founded in the principles of the society, for which they are made. But such are not the laws contemplated in the passage cited from Judge Blackstone He suppo­ses no laws to be directly binding on the consciences of men, but such as are foun­ded in the permanent, universal principles above mentioned; that the laws founded in principles, which arise from a meliora­ted state of society, have not, generally, this obligatory force.

SECTION IV. Of Principles of government as they affect the moral obligation of laws.—Their dif­ference in this respect. —The British Gov­ernment.—The Government of the United States.

FROM the different nature or constitu­tion of governments, their principles and the spirit of their laws will be different. Fear, supported by the terror of punish­ment, [Page 234] or a superstitious veneration for the reigning family, or both, are the princi­ples, that is, the great object of the laws, and the sole motive of obedience, in a des­potic government. Monarchy does not lose sight of the principle of fear, but blends with it, chiefly in regard to the or­der of nobility, the principle of honor, as it is there understood, a sentiment merely personal, and devoted to all the caprices of opinion. The principle of an aristocracy, as it relates to the subject, differs little from despotism. A republic, or rather a demo­cratic republic has for its principle, that is, the end of its institution, and the mo­tive of observance, a rational and senti­mental attachment of the people to the community, its laws, and government. A mixed government partakes of all the principles, each of which predominates, in proportion to the prevalence of one or other of its constituent parts.

Where fear is the governing motive of every social action, all happiness in social in­tercourse, all social improvements, are not neglected only, but are opposed by the gen­ius of the government. Blended with fear, however, honor, that principle of all the most capricious, sometimes irradiates, but more frequently obscures the social horizon. Neither of them have any principal regard [Page] to the happiness of the citizens, or to the interests of morality.

The principle of a democratic republic, a sentimental attachment to the commu­nity, its institution and laws, needs not, neither can it endure, the intervention of the other two principles; principles which regard the whole society, as consti­tuted to gratify the passions and appetites of one, or a few individuals. Such a mix­ture of heterogeneous principles in a gov­ernment must, of necessity, have a very general effect upon its legislation, upon the interpretation, and execution of its laws. It will unavoidably dictate many acts and rules of civil conduct, which can, in no view, claim the sanction of the moral sense. Such is the government of Great Britain.

The spirit of laws is directed by the ef­fective principle; the principle, by the constitution, or nature of the government. Perhaps, the laws of Great Britain are, in general, the best, which can consist with the heterogeneous principles of that govern­ment If this be true, Judge Blackstone's distinction between those laws, which are morally, and those which are only politic­ally binding, is so far as it applies to those laws, just and necessary. Still it is a severe, though an undesigned stroke at the prin­ciples of that government.

[Page 236]Can there be a more sure, a more safe criterion for deciding the goodness of any government, than the tendency of its principles in legislation? That govern­ment, that constitution of society, the principles of which dictate those laws, and those only, which are adapted to the pres­ent state of men and manners, and tend to social improvement, which are influenced by a sense of moral obligation, and sanc­tioned by the laws of nature not of savage solitary nature, but of social nature in its improved and improvable state, is uncon­trovertibly good So far as it deviates, it is clearly faulty Upon a candid examina­tion, upon a fair comparison, it will be found, that a democratic republic is alone capable of this preeminence of principle.

It is true, that in any government, cir­cumstances foreign to its principles, may, and in this state of imperfection, frequently will, concur to the adoption of bad laws. But if the constitution and principles be good, such laws will not have a long con­tinuance.

The governments of the several Amer­ican states, as well as that of the Union, are of the democratic republican kind. We ought to know their principles, to study well their tendency, and to be able both in theory and practice to exclude all foreign principles.

[Page 237]Judge Blackstone was a British subject, highly in favor with the government. He was enamoured with its principles. He [...] blazoned them with all his rhetoric, and not the least those, which are the most faulty. Probably to these, not withstanding his great abilities, he was chiefly indebted for his preeminence. Unhappily, his Com­mentaries are the only treatise of law, to which the law students, in these states, have access. In every section of the criminal code, and no less, in every question of a civil nature, where the prerogative of the Crown, or the privilege of the Peers inter­vene, the principles of the British govern­ment have given a cast to his reasonings. I wish not to detract from the merit of the author, as a British subject; a writer who has, in a masterly manner, delineated the laws and jurisprudence of a foreign nation, under a government very different from our own.

There are many things in his Commen­taries, which accord with the principles of the American governments, and which are founded in the universal principles of ju­risprudence. These, however, will be found to be derived from the democratic part of the British constitution. The stud­ent should carefully learn to distinguish those principles, which are peculiar to that [Page 238] government, or governments of a similar constitution; to distinguish the reasonings, which are accommodated to those princi­ples, or solely dictated by them He ought to know, that they are not universal: that in a democratic republic, they are wholly in admissible. This is not enough. He should b [...] led through a system of laws ap­plicable to our governments, and a train of reasoning congenial to their principles. Such a system we yet want. Surely genius is not wanting in America. Can none be found equal to the arduous, the important task? Perhaps, we are not yet fully ripe for the undertaking. Years may be neces­sary for its completion. But he who shall only prepare the rudiments, will deserve highly of his country.

SECTION I. Political situation of the States, previous to the establishment of the present Federal Government.

THE government of the United States of America exhibits a new scene in the political history of the world; a number of integral republics, each claiming and exercising all the powers of internal sove­reignty, within the limits of their respective jurisdictions, formed into one general gov­ernment, with powers of legislation for all national purposes, and the power of exe­cuting all their laws, within the several states, on the individual citizens, and that independently of the local authority. The experiment was new, and the success has, hitherto, exceeded the most sanguine expectation of its advocates. A situation so complicated, so different from that of simple governments, which have been the subject of these sketches, will have an effect, [Page 240] if not upon the laws of nature, from which the general principles are ultimately de­rived, yet to give a different modification to those principles, owing to the different combinations and relative circumstances of the constituent parts; and will have an influence on its organization, and the exe­cution of its laws.

To examine these principles, and the several excellences and defects to be found in them, and the national government, to which they have given rise, is a subject of importance to every citizen of the Union. The novelty of the subject, in which the example of other nations furnish little or no light of experience, and in which suffi­cient time has not yet been allowed for a full maturity of observation on the effects of this system in operation, renders it a task of difficulty, and of dubious success. I do not aspire to a perfect system, to a full in­vestigation of the subject. Mine is a hum­bler task. I aim only at sketches.

The several American States, while co­lonies, or provinces of the British empire, had, in general, no direct connexion, or governmental dependence on each other. They were, though situated in the same vicinity, and professing allegiance to the same common sovereign, connected only through the government of Great-Britain, [Page 241] the common head. There existed a simi­larity of manners, which might well be called national. There were, indeed, pro­vincial differences; not greater, however, than are to be found in the island of Great-Britain, or even in England alone. As Americans, they had little national senti­ment. It was by different channels cen­tred in Great-Britain. Any collected, permanent, national sentiment was opposed by their foreign connexion. It was the policy of the British government to foment divisions in the colonies, to a certain de­gree, and to cherish their local prejudices. The similarity of their circumstances, how­ever, in the difficulties of making settlements in a wild, uncultivated country, at a great remove from any part of the civilized world, produced some degree of direct attachment. This was increased by the necessity of defence against a common ene­my. Bloody wars waged against them by the savages, who were instigated and assist­ed by the French, the ancient enemies of the English, suggested the expediency of common counsels, and united excitions. Consultations were held, by Delegates from the several provinces; measures for the common defence were devised, and after­wards executed, in pursuance of their mu­tual counsels. This was the germ of that general u [...] of [...] and sentiments, which produced the American revolution.

[Page 242]It for a time acquired its utmost force from the oppressive measures of the British government, which equally affected the liberties of all the colonies, now the United States of America. The first inhabitants had brought with them all the democratic principles of the British government and had communicated them, nearly free and unmix­ed, to their descendants. Their love of liberty, and a knowlege of their rights, was not a little increased, both by an equal en­joyment of rights and property under mild and equitable laws, mostly formed by themselves, and by the disputes, to which extraordinary claims of power, on the part of Great-Britain, had given occasion. The principles of Monarchy and Aristocracy, had, however, prevailed, more, or less, in almost all the colonial governments. They were, in form, epitomes, of the British government. In each, there was a Gov­ernor, representing the King; a Council, representing the House of Lords; and an Assembly, composed of the Representatives of the People, the Commons of America. In most of the colonies, the Governor and Council were mere creatures of the Crown. They were wholly dependent on the King. He appointed and removed them, as well as the Judges, at pleasure. This created a powerful aristocratical influence, altoge­ther [Page 243] hostile to the liberties and interests of the people. Happily, the plan of estab­lishing a hereditary Nobility in America, was never adopted. Had such an estab­lishment been made, at an early day, it would, by securing a permanent interest in the principles of the British government, and by holding out the tempting bait of honors to the more wealthy and influential characters, have firmly, perhaps durably, riveted the shackles of slavery on the Americans.

When the measures, which gave rise to the American revolution, were adopted by the government of Britain, the body of the people had not been corrupted by these principles. The sentiments of attachment, which originated in their descent from a common stock, and was cherished by a si­milarity of circumstances and adventures, had been strengthened by their common counsels, and common exertions, in a long and bloody war. These common exertions had given them an opinion of their united importance. A more general acquaintance had been introduced, and a reciprocation of counsels and good offices, tended to soften and remove those local prejudices, which had intervened, and which had been artfully fomented, by the jealous temper of the mother government. A similarity [Page 244] of situation, and a similarity of danger, from the same quarter, united their inter­ests and sentiments, and suggested the idea of again uniting their counsels, to obtain redress. This produced the first Congress. A number of delegates from the several colonies assembled for mutual council, on the common situation, in which they were placed, by the oppressive measures of the British government, and laid the founda­tion of the American republic.

A second Congress was met, when Great Britain commenced her military operations against what she termed her rebellious col­onies. From that time, a Congress direct­ed the affairs of America. The fourth of July, 1776, the thirteen colonies were, with their general consent, declared by Con­gress, Free and independent States. The several states, now independent, adopted or continued republican forms of govern­ment, and entered into articles of confed­eration for their mutual defence, and the direction of national measures. The na­tional government which was to be in a Congress of delegates from the several states, had little more than the power of a diplomatic body. They were invested with neither the power, nor the means of carrying their ordinances into execution. The states governments retained the only [Page 245] efficient power within their several juris­dictions. Common danger, pressing from every quarter, for a time, united their coun­cils, and supplied a degree of energy to their measures, which carried them trium­phantly through the war, and secured their independence; but the principle of this energy was wholly foreign to the govern­ment. No [...]ooner was the war ended, than the total inefficiency of the federal government was discovered. An enor­mous debt had been contracted, and pub­lic credit was in the lowest and most hu­miliating state of depreciation. Congress found themselves, in effect, possessed of neither legislative nor executive powers. Their ordinances were disregarded. Ma­ny states neglected or refused to furnish their quotas of the national expenditures, the price of their liberty and independ­ence. In some states, the treaties made with foreign nations, particularly with Great Britain, were disregarded, or open­ly violated. The authority of Congress was wholly lost. The states had, in effect, become so many independent nations. There was no more a national sentiment, or the pursuit of a national interest. An­cient prejudices, which had subsided, du­ring the struggle for liberty, were rapidly reviving. Each state pursuing its local and [Page 246] separate interests, seemed to bid defiance to any national union. The effect of this sit­uation began to be apparent in the man­ners of the people, and in the administra­tion of the states governments. They were verging towards the situation of small, independent tribes in the same vi­cinity. This situation visibly contracted the views of the people, and formed them to a spirit of faction. The states govern­ments were mostly incapable of pursuing any energetic system of administration. The whole country was clearly in a state of civil and political retrogradation.

The effect on the minds of the people was no less moral than political. A want of public credit, and its concomitant evil, a depreciating paper currency, had nearly ruined their morals, their industry, and their commerce, as well as private credit. Many other causes, not necessary here to enumerate, concurred to heighten the evil. Dangerous insurrections actually existed in some states, and others trembled in ex­pectation of the like event. Many began to suppose that the liberty, for which they had risked so much blood and treasure, was but a phantom of the imagination; that an equal enjoyment of rights was, under any arangement, incompatible with political happiness. The wisest and best [Page 247] citizens had conceived, that an energetic system of national government, could a­lone give any reasonable hope of reviving the ruined state of commerce, of restoring public and private credit, of giving any degree of nationality to the Union, of secu­ring the faith of public treaties, and in a word, of preventing or repelling the nu­merous impending evils, which threatened to plunge the country into anarchy, and all the horrors of a civil war. Congress, who were fully sensible of the inefficiency of their powers, to any national purpose, recommended it to the states to meet in Convention, by their Delegates, to delib­erate on a plan of national government, which might be equal to the exigencies of the states. The present constitution of the United States of America, was the result of their deliberations. This consti­tution, as a unique in federal politics, orig­inated in an actual, deliberate agreement between the states, and was ratified by the free consent of the people of each state, by their Representatives, chosen for that purpose.

Briefly to examine the principles of this government, both in its organization and operation, and to enquire how far it is a­dapted to the situation of the country, al­ready divided into separate states, will be the subject of the following sections.

SECTION II. Difficulties in forming an efficient Federal Government.—Summary view of the two principal Forms, which have hereto­fore been adopted, that of ancient Greece, and the United Provinces of the Nether­lands, with their Defects.—A concise view of the present Federal Government of the United States of America.

THE political situation of the American States, occasioned many anxious appre­hensions, as to the practicability or expe­diency of constituting an efficient, national government. It created numerous diffi­culties, which experience alone could ob­viate. It was by many apprehended, that an efficient, national government could not consist with any considerable degree of authority, in the states governments; that it would encounter all the absurdities of a sovereignty within a sovereignty; and that one, in the end, must be annihilated by the other. According to the various opin­ions concerning the utility and necessity of an energetic, national government, some warmly supported, while others deprecated the idea of a collected sovereignty. The [Page 249] magnitude of the object excited the anxiety of every class. Many dreaded an arbitrary power in a general government, uncon­trouled, by the authority of the states. Some, alarmed at the danger, which threatened a dissolution of all national union, and willing to risk a desperate re­medy, which, they imagined, could alone prove effectual, would readily have sacri­ficed the whole authority of the states, to a national legislature. They wished a con­solidation of the whole into one efficient government.

Others, from a more happy train of thought, or more mature reflection, con­ceived the plan of reconciling the general and particular powers, not so much by a subordination of one to the other, as by a precise limitation, in respect to their several objects, and rendering them mutually sub­servient, and even necessary to each other's efficiency. They perceived, that it was not practicable, perhaps, not even desirable that the same regulations, the same mode of holding property, and conducting inter­nal policy, should take place through the whole. They perceived, that in a country so extensive, soil, climate, and circumstances, at first, accidental, had introduced local differences of manners, habits, interests, and pursuits; that these differences were, [Page 250] generally, limited by the limits of the seve­ral states; that they might give rise to an emulation in arts and industry, and lay the foundation of an extensive national in­tercourse, by way of exchange; but, that it would be impossible to comprehend them under any general regulations and uniform national laws. There were local legisla­tures already established, equal to all local occasions. They perceived, that the na­tional interest was not concerned to inter­fere in matters of this nature. The objects of the national [...]vernment would be more general. The great idea was to give a national individuality to the states collect­ively. It was apprehended, that the diffe­rent interests, properly represented, might be modified, compromised, and directed, in such manner, that instead of those in­terferences and irreconcilable oppositions, which must frequently arise from too great a degree of independence among the several states, they might be bro't to coalesce, and add no less to the individual, than national prosperity. The point of great difficulty was, to render the acting members of the fe­deral government, accountable, as well to the states governments, as to the people; and to constitute the federal government, suffi­ciently energetic, to carry into execution, by an authority delegated for that purpose, [Page 251] every necessary, national measure; and yet, so to limit the authority, in exercise, that no danger might reasonably be appre­hended to the rights of the people, or the states in their particular jurisdictions.

Several instances occur, both in ancient and modern times, of small states confede­rated, with a view to a general union, in the pursuit of national measures. The great end in view, and which has always been a desideratum in federal politics, was to bring the people to have a sense of a national interest, and all the states of the confede­racy, effectually to act in concert, in those measures, which relate immediately to the good of the whole. We may now reckon three principal modes, in which this has been attempted.

The first, because the most ancient mode, is by a council empowered to legis­late upon the several states composing the confederacy. Of this kind was the Council of the Amphictyons, at the head of the confederated states of ancient Greece. In this case, as none but states can refuse to obey, a delinquent can be nothing less than a state, already provided with arms and councils for a formidable opposition. To enforce the decrees of the confederate council, which we may call the laws of the union, it becomes necessary, in case of a [Page 252] refusal of any part, to draw out the forces of the complying states, and to compel obedience by dint of arms. The history of ancient Greece is, for many years, in­famous for a succession of such wars. Such were the Sacred, and many other wars. The famous Peloponnesian war, which raged with almost unabated fury nearly thirty years, may, in a great measure, be attributed to the same cause, the want of an efficient power in the national council. Such ever have been, and such ever will be the effects of this kind of government, unless, like the late Congress of the United States of America, they suffer their laws and ordinances to be violated with impuni­ty; and in this case, the consequences will be the same; the government will soon sink to the lowest point of degradation, and tremble on the brink of evanescence.

The second mode is, by a council, em­powered to propose measures to the con­federated states, subject to the ratification of the states individually, before they ac­quire the force of laws, or can be carried into execution by the general authority. The government of the United Provinces of the Netherlands, furnishes us with an example of this second m [...]de. The State General are the grand council of the con­federacy. This council, though pomp­ously [Page 253] stiled THEIR HIGH MIGHTINESSES, have, in all matters of national concern, whether of greater or less moment, a power to propose only. The several states have reserved to themselves the right of ratifica­tion. No law can be constitutionally binding, until it have been ratified by each. The veto of a single state, and even, in some instances, of a single corporation, may disconcert, and actually has disconcerted the national counsels, in measures of press­ing necessity. Frequently, on great emer­gencies, such has been the delay, before all the states could be brought to agree, that the opportunity of acting has been wholly lost. This has induced the States General, aided by the hereditary Prince of Orange, who, as Stadtholder, administers the republic, and whose power and influ­ence are great, sometimes to act without the authority of the smaller states, and even against their determinations. Such a disregard to the constitutional principles of their union, has, among that people, not remarkable for a spirit of faction, produc­ed high domestic violences, and convulsed the government, with dangerous insurrec­tions.

The third mode is by an organized go­vernment, impowered, in all matters, which relate to the collective interests and pros­perity [Page 254] of the confederacy, to legislate upon the citizens of the several states, as citizens of the Union, and to carry the laws into execution, by ministerial officers of the same government. Of this form of federal government, we have the first com­plete example, in the present constitution of the United States of America. In this government, the National Legislature, in all matters, which come within the sphere of their constitutional authority, legislate, not upon the states collectively, but upon the citizens of the union. Their measures and laws are valid and binding, without any ratification beyond their own act. The constitution, and all acts of authority, warranted by the constitution, are the su­preme law of the land, and binding in all decisions, as well in the courts of the several states, as in the federal courts. To pre­vent different constructions, which might arise in different tribunals, under the bias of local authority, influence, or prejudice, the judiciary, for all cases arising under the constitution and laws of the Union, and those cases of public or private controversy, to which the state jurisdictions are incompetent, or, unavoidably liable to a partiality dan­gerous to general justice, hold their offices by appointment of the supreme power of the confederacy, and are amenable only to [Page 255] that power, and their decisions are carried into effect by ministerial officers appointed under the same authority.

While the federal government is vested with the supreme authority, in all matters, which involve the general welfare of the Union, considered in a national view, the states governments, within the limits of their several jurisdictions, retain, as sove­reign, all those powers, which, in their due administration, most endear the civil state to mankind. To them it belongs, among their own citizens, to regulate the mode of acquiring, and to secure the acquisition of property, to animadvert upon morals, and to restrain and punish those crimes, which attack private property, violate per­sonal security, or in any way, disturb the peace of their communities.

SECTION III. Organization and Powers of the Federal Government.—Limitation of its Powers. —Principles of Accountability.—Brief View of its effects in Practice.

THE government of the United States of America is constituted with legislative, judicial, and executive powers, vested in distinct and separate departments. The legislative power is vested in a Congress, consisting of a Senate, and House of Re­presentatives, whose powers in legislation are mutual. The Representatives are chos­en by the people of the several states, every second year, and are apportioned by the number of people in each state, to be ascertained by an actual enumeration, tak­en once in every ten years.

The qualifications for the Electors of the Representatives are not reduced to a uniform rule throughout the Union; but are to be the same in each state, as for the electors of the most numerous branch of the state legislature. To be eligible, as a re­presentative, three qualifications are neces­sary, neither of which introduce any odious distinction of classes. To be eligible, a [Page 257] person, must have attained the age of twenty-five years, have been seven years a citizen of the United States, and at the time of his being elected, an inhabitant of the state, for which he is elected. Property is, in most of the states, a qualification, both of electors and candidates; so far it is a qualification for the electors of the federal representatives; but not for candi­dates. Hence it may happen, that a person may be elected, who has not a right of suffrage in the election. This is, at least, a slight inconsistency, which it would have been desirable to have avoided, by extend­ing, more equally and uniformly, the right of suffrage. It is probable, however, that difficulties, on this point, would have arisen from an attachment to local usages.

The Senate of the United States is com­posed of two Senators from each state, chosen by the Legislature. The Senators are divided into three classes. The seats of one class are vacated every second year, and the vacancies supplied by the legisla­tures of the states, to which the senators of such class respectively belong. Their election is, therefore, in reality, sexennial, and the senate can never be composed of more than one third new members. There are three qualifications for a senator — He must have attained the age of thirty [Page 258] years, have been nine years a citizen of the United States, and at the time of his elec­tion, be an inhabitant of the state, for which he is chosen.

We may, with satisfaction observe, that in the qualifications of the senators, there is no feature of aristocracy, nothing, which tends to a distinction of ranks. The qua­lifications, both of the senators and repre­sentatives, tend only to secure in the fede­ral legislature, a maturity of experience and abilities, an attachment to the national interest, and the interests of the respective states.

Each House chuse their own officers, except, that the Vice-President of the United States, for the time being, is Presi­dent of the Senate, and are sole judges of the elections, returns, and qualifications of their own members. The times and plac­es of holding elections for senators are pre­scribed by the legislature of each state; but Congress have power, by law, to make, or alter such regulations, except, as to the place of electing senators. This exception was made, that Congress might not have it in their power to remove the state legis­latures from place to place, at their pleasure. Would it not have tended to secure a more equal representation of the national interests, and a more ready acquiescence in [Page 259] the laws of the Union, had a constitutional provision been made, for a division of each state, in the election of representatives, into districts, agreeably to a just apportion­ment? I apprehend it to be of sufficient importance to claim a place among the laws of the constitution. Congress are to assemble, at least, once in every year. Each House is to keep a journal of its proceed­ings; and to publish the same from time to time, with the yeas and nays, which are to be taken and entered on every ques­tion, if desired by one fifth of the members present.

Beside the ordinary powers of legisla­tion, the house of representatives have the sole power, in the national government, of bringing impeachments, and the senate have the sole power of trying such im­peachments.

No bill can pass into a law, without the concurrence of both houses, and bills may indifferently originate in either. There is, indeed, one exception, and that a wise one, relative to bills for raising a revenue. These must originate in the house of repre­sentatives. The revenue is to be raised upon the people, to whom the representa­tives are amenable, not upon the states col­lectively.

[Page 260]To provide against a servile dependence, and to remove temptations to corruption, both the senators and representative [...] are to receive a compensation for their ser­vices, to be ascertained by law. The [...] enjoy certain privileges, and are subjected to certain disabilities. They are, except in eases of treason, felony, and breaches of the peace, privileged from arrests, during their attendance on the business of their appointment. To prevent an undue in­fluence, in any measure or department of government, senators and representatives, during the time, for which they are elected, are incapable of being appointed to any office, under the United States, which has been erected, or the emoluments of which have been encreased, during that time; nor can a person, holding any office under the United States, be a member of either house, during his continuance in office.

In the legislative sunctions of govern­ment, the President has a deliberative voice, but not a final negative upon any act [...] Every bill, which shall have passed the Senate and House of Representatives, must, before it becomes a law, be laid be­fore the President. If he approve, he signs it, and then it has all the force of a law. If he disapprove, he returns it, with his objections in writing, to that House, in [Page 261] which it originated. If two thirds of each House, on reconsideration, still adhere to their former opinion, it becomes a law, notwithstanding such objections. If the President neglect to return a bill for ten days after it shall be laid before him, it becomes a law, in the same manner as if he had approved and signed it, unless the return be prevented, by the adjournment of Congress. The same proceedings, under the same regulations, are necessary to the validity of eve [...]y order, resolution, or vote, to which the concurrence of both Houses are required, except in cases of adjourn­ment.

For the purpose of directing and limit­ing the powers of Congress to those objects only, which are of national necessity, or utility; of drawing a line between the se­veral branches, and to prevent, in the ex­ercise of their proper functions, any inter­ference between the federal and the states governments, the constitution has pointed out generally the objects of federal legisla­tion, and has limited and modified the seve­ral powers of the general government, as well as the powers of the individual states.

Congress are, by the constitution, em­powered to lay and collect taxes, duties, imposts, and excises, for the purpose of paying the debts of the Union, and pro­viding [Page 262] for the common defence and wel­fare of the United States; to borrow mo­ney on the faith of the Union; to regu­late commerce, both external and internal; to establish a uniform rule of naturaliza­tion, and uniform laws upon the subject of bankruptcies; to coin money, regulate the value of coins, fix a standard of weights and measures, and to provide for the punish­ment of counterfeiting the securities and current coins of the Union. They are empowered to facilitate and secure an ex­tensive national communication, by an establishment of post-roads and post-offices; to promote the progress of science and useful arts, by securing, for a limited time, to the authors and inventors, an exclusive right to their respective writings and disco­veries. To this body it is referred to de­fine and punish piracies on the high seas, and offences against the laws of nations. They have the power of declaring war, granting letters of marque, and reprisal, and of making rules concerning captures on land and water; to raise and support armies, with this restriction, that no money shall be appropriated to that use for a long­er term, than two years; to provide and maintain a navy; to make rules for the government both of the land and naval forces; to provide for calling forth the [Page 263] militia to execute the laws of the Union; to suppress insurrections and repel invasions; to provide for organizing, arming, and training the militia; and for their govern­ment, while in actual service. The States, however, have the appointment of the offi­cers, and the authority of training the militia, according to the discipline pre­scribed by Congress. Congress are, finally, empowered, to make all laws necessary and proper for carrying into effect, in the gov­ernment, or any department, or office of the United States, all the powers, with which they are invested, by the constitu­tion.

Such are the general powers, with which they are entrusted, for the purposes of na­tional government.

To render these powers, in exercise, equal in every part of the Union; to pre­vent any preference of one state to another; to guard against the dangers of oppression; of profligacy in the national expenditures; of peculation in its officers, and, if possible, to avert every tendency to corruption, in the principles of the government, certain restrictions and limitations are provided. It is expresly provided, that all taxes, duties, imposts, and excises, shall be uniform throughout the United States; that no preference shall be given, by any regula­lation [Page 264] of commerce, or revenue, to the ports of one state, over those of another, nor the commerce of any state be impeded, by obliging the vessels bound to or from one state, to enter, clear, or pay duties in another.

Congress may not suspend the privilege of the writ, of Habeas Corpus, unless when in times of invasion, or actual rebellion, the public safety shall require it. No bill of attainder, the oppressive engine of state, in many governments, can be passed by the federal legislature. No capitation, or di­rect tax can be laid, unless it be in propor­tion to the census of the inhabitants of the several states. No money is to be drawn from the national treasury, but in conse­quence of appropriations made by law; and an account of the receipt and expendi­tures of public monies is directed to be published, from time to time, for the in­formation of the people, The national government are prohibited to grant any ti­tle of nobility: and to exclude an undue, foreign influence, in measures of govern­ment, no person holding any office of pro­fit, or trust, under the United States, may, without the consent of Congress, accept of any present, emolument, office, or title whatever, from any king, prince, or fo­reign state.

[Page 265]It is provided that no state in the Union shall enter into any treaty of alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit, make any thing but gold and silver coin a ten­der in the payment of debts; pass any bill of attainder, ex post facto law, or law impair­ing the obilgation of contracts, or grant any title of nobility. No state may, with­out the consent of Congress, lay imposts, or duties on imports, or exports, except what shall be absolutely necessary for exe­cuting its inspection laws; and the nett produce of all duties, and imposts, laid by the several states, are to be to the use of the United States, and all laws, for that purpose, are subjected to the revision and controul of Congress. No state, without the consent of Congress, may lay any duty of tonnage, keep troops or ships of war, in times of peace, or enter into any agree­ment, or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger, as not to admit of delay.

The executive power is vested in a Pre­sident of the United States, who holds his office for the term of four years. For the election of the President, each state is to appoint, in such a manner as its legislature shall direct, a number of electors, equal to the [Page 266] whole number of representatives, to which such state is entitled. No person is capa­ble of being appointed an elector, who, at the time shall be a senator, or representative in Congress, or hold any office of profit, or trust, under the United States. Congress have power to determine the time of chus­ing the electors, and the day of giving their votes, which is to be the same in every state. The electors are to meet in their several states, and to vote, by ballot, for two persons, one of whom, at least, shall not be of the same state with themselves. The votes of the electors are to be trans­mitted, sealed, to the President of the se­nate, at the seat of government of the United States, and to be counted in presence of the senate and house of representatives. The person, who shall have the greatest number of votes, being a majority of the whole number of electors, is appointed President. If there be more than one, who have such majority, and have an equal number of votes, the house of representa­tives are immediately to chuse, by ballot; one of them for President; and if no per­son have a majority, the same house are to chuse a President from the five highest on the list. For this purpose the votes are to be taken by states, and a majority of all the states is necessary to a choice. After [Page 267] the choice of a President, the person hav­ing the greatest number of votes of the electors, is the Vice-President. If there be, in this case, two, who have an equal number of votes, the senate are, by ballot, to chuse one of them for a Vice-President.

The qualifications for the office of Pre­sident, are, that he be a natural born citi­zen, or a citizen of the United States, at the time, when the constitution was adopt­ed; that he have attained the age of thir­ty-five years, and have been fourteen years resident within the United States. In case of the removal of the President from office, or of his death, resignation, or disability to discharge the powers and duties of his office, the same devolve on the Vice-Pre­sident; and Congress are empowered to make provision to supply the place, both of the President, and Vice-President, by declaring, what officer shall supply the of­fice, in such case.

The President is to receive a compensa­tion for his services, which can neither be increased nor diminished, during the time, for which he shall have been elected; nor may he, during that period, receive any other emolument from the United States, or either of them. He is commander in chief of the army, navy, and of the militia, when in actual service. He is entrusted [Page 268] with the power of granting reprieves and pardons, except in cases of impeachment. He has the power of making treaties. In this, however, he must have the advice of the senate, in which two-thirds of the sen­ators present must concur. He is, like­wise, subject to the advice of the senate, entrusted with the power of appointing ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States, whose appointment is not otherwise pro­vided for by the constitution, or established by law. The President is to fill all va­cancies, which shall happen, in the recess of the senate, by filling up commissions, which shall expire at the end of the next session.

It is made the duty of the President to give to Congress information of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient. He has the power to convene both houses, or either of them, upon extraordinary occasions; but he has no power to prorogue or adjourn them, unless the two houses disagree, in respect to the time of adjournment. He is to receive ambassadors, and other public ministers, to take measures for the faithful execution of the laws, and to commission all officers of the United States.

[Page 269]The President, Vice-President, and all civil officers of the United States, are re­movable from office, on impeachment and conviction of treason, bribery, and other crimes and misdemeanors, and are further liable to indictment, trial, and punishment, according to law.

The judicial power of the United States is vested in one supreme court, and such inferior courts, as Congress shall, from time to time, ordain and appoint. The judges of all the courts hold their offices during good behaviour; and at stated times, are to receive for their services a compensation, which may not be diminished, during their continuance in office.

The judicial authority is extended to all cases, in law and equity, arising under the constitution, and laws of the United States, and treaties made under the same authori­ty; to all cases of admiralty and maritime jurisdiction; To controversies to which the United States shall be a party; to controversies between two or more states; between a state and the citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states, and between a state and its citizens, and foreign states, citizens or subjects.

[Page 270]Where a dispute shall arise between two or more states, which cannot be compro­mised by the parties, it is doubtless eligible to refer the decision to the national au­thority. The danger, which may arise from an attempt to execute the laws of the Union, in this case, upon a whole state, is less to be dreaded, than the remaining alternative, an appeal to force, between the states in controversy. But this mode of executing the laws of the Union, ought not to be hazarded, unless to avoid a great­er inconvenience. Individual claims up­on any of the states, should be submitted to the laws, or the equity of the state. The case may, indeed, happen, that an indivi­dual will be injured, without redress. Should this case happen more frequently, than it probably will, it can never be of a magnitude sufficient to justify a degradation of the authority of a state, or to risk the peace of the Union, by attempting to execute its laws on the states collectively.

Ample provision is made to secure among the several states a mutual confidence; to establish, among the citizens of the whole a reciprocal enjoyment of rights, in their public and private intercourse: to cultivate and extend a national sentiment, in every part of the Union, and to prevent those injuries, which arise from local law and custom▪

[Page 271]Full faith and credit is to be given, in each state, to the public acts, records, and judicial proceedings, of every other state. The citizens of each state are entitled to the privileges and immunities of citizens in every state. A person charged, in any state, with treason, felony, or other crime, and flying from justice, shall, if found in any other state, be delivered up, to be re­moved to the state having jurisdiction of the crime. No person holden to service or labor in one state, under its laws, escaping into another state, shall in consequence of any law, or regulation in that state, be dis­charged from such service or labor; but shall be delivered up, on claim of the per­son to whom such service or labor may be due.

New states may be admitted by Con­gress, into the Union, but no new state may be erected or formed, within the jurisdiction of any other state, nor any state formed by the junction of two, or more states, or parts of states, without the consent of the states concerned, as well as of Congress. The United States are hol­den to guarantee to each state in the Union a republican form of government, and to protect each against invasions, and on application of the legislature, or, in cer­tain cases, of the executive, against domes­tic violence.

[Page 272]There are other clauses, which are in­tended as a declaration of rights, to guard against an undue exercise of power, in the administration of the federal government, as it may affect the rights of the several states, or individual citizens.

It is declared that treason against the United States, shall consist only in levying war against them, or adhering to their en­emies, giving them aid and comfort; that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act; or on confession in open court. Congress have the power to declare the punishment of treason; but no attainder of treason shall work a corrup­tion of blood, or forfeiture, except during the life of the person attained. They can make no law respecting the es­tablishment of religion, or prohibiting its free exercise; no law which may abridge the freedom of speech, or of the Press, or the right of the people freely to assemble and petition government for a redress of grievances, or infringe the right of the peo­ple to bear arms.

Provision is made to prevent oppression from quartering soldiers on the people, and from unreasonable search, or seizure, on general warrants, without probable cause, supported by oath o [...] affirmation. No per­son [Page 273] may, for the same offence, be twice put in jeopardy of life or limb, be com­pelled, in any criminal cause, to witness against himself, or be deprived of life, lib­erty, or property, without due process of law. Private property may not be taken for public use, without due compensation.

It is particularly provided, that no per­son shall be holden to answer for a capital, or otherwise infamous offence, unless, on a presentment or indictment of a grandjury, except, in cases arising in the land or na­val forces, or in the militia, when in act­ual service, in time of war, or public dan­ger; that in criminal prosecutions, the ac­cused shall enjoy the right of a speedy pub­lic trial, by a jury of the state and district, where the crime shall have been commit­ted, if committed within the limits of any state; to be confronted with witnesses a­gainst him; to have compulsory process for witnesses in his favor, and to have the assistance of council.

In trials at common law, when the val­ue in controversy exceeds twenty dollars, the right of trial by jury is preserved. Here let us reflect. In a matter of so much consequence, as the trial by jury, would it not have been better to have guaranteed it to the citizens, in every issue of fact, at common law, without any dis­crimination of the value of their demand?

[Page 274]Excessive fines may not be imposed, nor cruel and unusual punishments inflicted. It is finally declared, that the enumeration of certain rights, in the constitution, shall not be construed to deny or disparage others retained by the people, and that the pow­ers not delegated to the United States, by the constitution, nor prohibited by it to the states, are reserved to the states respective­ly, or to the people.

In simple governments, an express limita­tion of powers is necessary, on the part of the rulers only. The limitations on the part of the constituent members, are implied in the duty of obedience to the constitutional acts of government. In the federal government, the situation of the constituent members, more involved, than in simple governments, rendered a different provision necessary.

The members of the federal govern­ment, though consisting ultimately of the same individuals, may be considered in two distinct views; individually, as citizens of the Union, and collectively, as formed into several states, each, within its own limits, vested with rights and powers of legislation, adequate to every civil regulation, merely internal. The state legislatures might, ei­ther in the objects, or the subject matter of their regulations, interfere with that author­ity, which the collective national interests, [Page 275] the peace, happiness, and prosperity of the whole require should be exercised by the national government alone. To prevent an evil, of a tendency so fatal, in a national view, is apparently the principal end of all the limitations on the powers of the several states, and their legislative bodies. The federal government, designed to embrace only general, and national objects, and not extend to the merely internal regulations and policy of the individual states, it was found, in respect to its objects, to be less involved, and its powers capable of a more precise enumeration and definition. For this reason few, and those pretty general limitations of the powers of the federal government, are inserted. Instead of particular, enumerated instances, in which its powers are limited, the same end is more fully attainted, by a declaration, which, in effect, denies to Congress, the exercise of any farther, or other powers, than those, which are delegated by the constitution, and reserves to the states and the people, all those powers and rights, which are not so delegated. This, as it takes away every pretence for claiming constructive powers, in derogation of the powers of the states, and the rights of their respective citizens, if not the only effectual, is clearly the safest mode of li­miting [Page 276] the powers of a government thus constituted.

The accountability of the rulers is a prominent feature, in the federal constitu­tion. In securing this important object, great attention has been paid to the pecu­liarity of the situation of the constituent members, both as states, and as citizens. The senators of the United States, appointed by the legislatures of the several states, and from time to time amenable to them, may well be considered as guardians of the rights of their respective states against all eneroachments of the national govern­ment.

The representatives in Congress, elected by the people, and accountable to them, through the means of biennial elections, are bound by all the ties of interest and affection, to watch over the rights of the citizens, and the rights of the several states, with which their electors are more imme­diately connected.

The right which once in four years, de­volves on the legislatures of the several states, of appointing the electors of the President and Vice-President of the United States, or of directing their appointment by the people, secures to the states and to the people, a powerful check on the executive of the federal government.

[Page 277]The judges, appointed by the President, with the advice of the senate, to hold their offices during good behavior, secure of their compensation, without the fear of diminu­tion, and subjected with all other officers of the national government, to removal by impeachment, and punishment by the laws of the land, for male-administration, are placed in a state of accountability, blended with a degree of independence, from which can alone be expected an inflexible integrity of conduct, in that department.

This constitution of government, found­ed in the same principles as the constitutions of the several states in the Union, as nearly as the relative situations admit, and formed on the same plan, exhibits, in theory, the most beautiful system, which has yet been devised by the wisdom of man. It is true, that this form of federal government is a new phenomenon in the political world. Hardly a shadow of such principles and powers, as it relates to the practice and execution, in a federal union of states, is to be found in the history of ancient or modern politics. In this age of improvements, no less in the science of government, than in other sciences, its novelty will not be made a serious objec­tion; yet it must be acknowleged, that the consistency of these principles in opera­tion, [Page 278] and their efficiency, in point of prac­tice, might still be considered as problema­tical, had they not, in a good measure, been evinced by actual experiment. Solely an impression of the efficiency of the federal government, favored, perhaps, by its na­tional magnitude and importance, added, at the instant of its organization, a degree of energy to the states governments, and put an end to those factions and turbulent commotions, which made some of them tremble for their political existence. The legislatures of the several states, under the auspices of this government, appear to have exploded their former systems of local and temporary expediency, and founding themselves more generally on the basis of moral and national justice, have given a force and consistency to their laws, and in­spired a confidence among the citizens, the want of which had almost annihilated private credit. The authority of the fe­deral government rendered this confidence general and reciprocal. Its beneficial in­fluence was not confined to the limits of the Union. It extended to distant countries, and produced the happiest effects in the commercial intercourse of the citizens with foreign nations.

The administration of this government, by discovering the national resources, [Page 279] uniting and directing them to the proper objects, by an almost instantaneous impulse, restored public credit and national faith, which had long been in a state bordering on desperation, to a degree of respectability, of which few examples are to be found in the history of nations. These operations afforded means, and added vigor to indus­try among every class of citizens. Agri­culture, commerce, arts, and manufactures, have felt a new, and more powerful stimu­lus. The spirit of enterprise, without which nothing great is ever to be expected, has, by the extensiveness of the prospects, and the magnitude of the objects presented, been productive of effects, of which the Americans had, before, hardly entertained a conception. In such a change of cir­cumstances, such a novelty of prospects and security of hope, an intemperance in the spirit of enterprise was, in some measure, to be expected. Accordingly, in too ma­ny instances, it degenerated into speculating projects, the influence of which on morals were, for the moment, no less pernicious, than the depreciating system, which pre­ceded. This ought, however, to be attri­buted to its proper cause, the former extent and degraded state of paper credit. In applying a remedy to an evil, so universally inveterate, this effect ought to be considered, [Page 280] rather as the last malignant effort of the evil, than an indication of the unsuitable­ness of the remedy.

The wisdom, justice, and equality of the laws enacted under the federal govern­ment, and consequently the beneficial in­fluence of its principles, are strongly evinced by the prompt observance of a free and enlightened people. Compared with the extent and variety of transactions, which, since the adoption of this government, have employed every class of citizens, the courts of the Union have in few instances, been called to animadvert on a breach of its laws.

The experience, which we have already had, is sufficient to found a confidence, not only in the efficiency of the federal government; but in the coincidence of its principles, with the laws of civil and social nature, and the present state of manners and knowlege.

SECTION IV Observations on the Tendency in Government to a Corruption of its Principles, Degene­racy, and Dissolution. — Plan of Reforma­tion incorporated in the Federal Govern­ment. — Probable Effect in perpetuating the Government.

MONTESQUIEU, speaking of that kind of government, which was established through Europe, by the conquerors of the Roman empire, says, "It was a good government, that had in itself a capacity of growing better." ^* This capacity of grow­ing better, was not the effect of any direct intention of the founders, nor, if perceived, was it ever pursued. Accordingly we have seen this kind of government, almost uni­versally, degenerating into a species of des­potism. If any government have admited improvements, these improvements have never been deliberately made, in conse­quence of any fixed plan of reformation adopted in the constitution. They have been constantly introduced by viole [...]e, or in a concurrence of circumstances, [...]le if at all intended or foreseen.

[Page 282]Notwithstanding the foregoing observa­tion of Montesquieu, he appears to join in an opinion, which has very generally pre­vailed, that governments, like men, from a necessity of nature, carry in themselves, from their very origin, the feeds of dissolu­tion; that man is fatally incapable of forming any system, which shall endure without degenerating. This opinion seems to be countenanced by the experience of ages. I am apprehensive, however, that on enquiry, we shall find reason for a dif­ferent opinion. A more general develope­ment of the laws of human nature, may discover, that, though in the infancy of mankind, from which, perhaps those na­tions, who have made the greatest advances, have hardly emerged, this may be true; yet man is, by nature, capable of improve­ments, which may render an amelioration in government as easy and familiar as in any science. The same fate has attended all sciences of more difficult investigation. Their establishment and improvement have generally been attempted by reasonings a priori, in which imagination is the principal agent. It has fared in the same manner with the various systems of natural philo­sophy, morality, and theology, which have succeeded each other in the world.

[Page 283]Within little more than a century, ex­perimental reasonings have banished almost innumerable absurdities, and in many sci­ences, seem to have laid a foundation of knowlege, as fixed and as durable, as the course of nature. It is at length perceived, that the operations of nature are subjected to certain laws, established by Deity, in the constitution of things; and, that nothing can be durable, which is calculated to thwart those laws, or divert them from their course. Man, and all the works of man, no less than inert matter, are subjected to those laws. States, kingdoms and em­pires, if they admit principles, which thwart the established laws of nature, like heaps of sand, opposed to the resistless force of a torrent, are inevitably swept into the gulf of dissolution.

The laws of nature, we have before ob­served, are immutable; not so the relations, from which they result; or the particular situations, in which those laws were de­signed to operate. This may need some illustration.

Matter is found existing, under modifica­tions infinitely various, and is denominated of different kinds. Different kinds of matter, endued with what we call different powers, are found to have certain relations to each other, as well in the more simple, as in the [Page 284] more intricate and comprehensive combin­ations. In all the variety of ways, in which they may be combined, each particular com­bination, invariably produces the same par­ticular effect. If the combination be chang­ed, the relations are changed. It comes un­der a different law, and a different effect is produced. All kinds of inert matter are in­capable, from any internal power, which they possess, of changing their combination, or of altering the present existing relations. If any change or alteration be made, it must arise from something external. Hence, in the natural world, the course of effects is uniform, because the relations and situa­tions of themselves continue uniform. In the moral world it is different. Man has both active and passive powers; both intelligence and volition to direct their operations. He is capable of changing the relative situation of things, both in respect to himself, and in respect to the different kinds of matter, which are subjected to his operations. Hence the relative situa­tion, being less uniform, effects and events, both natural and moral, as they relate to him, will be less uniform. The relations of matter, and the laws of its operation, are to the material agents, irresistible; not so the laws of moral action. The laws of moral action respect the design of the [Page 285] agent, in connexion with the means and the end, both general and particular. The laws of matter have no respect to the design of the material agents. The one is obligatory, and precedes the action: the other is ne­cessary, and accompanies the operation.

For these, among other reasons, the laws of moral agents, by which their actions are produced and governed, and the events, which respect them, directed, are not so easily understood, or so fully comprehend­ed, as the laws of matter.

To an omniscient Being, indeed, the former are as perfectly intelligible as the latter. We know likewise, that men are capable of acquiring much knowlege on the subject, and that some of more com­prehensive minds, and closer observation, are capable of tracing the laws of human actions, even in many very intricate com­binations, and of calculating upon their general operations, in given situations, with no inconsiderable degree of certainty. This is, indeed, the only solid foundation of political science. Political and civil laws are designed to regulate the future actions of men, as they arise in society, and to pro­duce such relations, as are dictated by the laws of social nature. Knowlege equal to this task is the result, only of accumulated experience. But a necessity for civil in­stitutions [Page 286] arises antecedent to experience. Civil institutions have generally been the rude productions of necessity, and the form originally imposed by fraud, violence, or what, to men, are the mere suggestions of chance. Men have commonly regarded only some of the most obvious, the most predominant, existing relations, with little knowlege of the change in the present relations, which would be the necessary effect of their institutions, or of the future improvement of the species. Indeed, could every individual in society, have an intuitive prescience of the changes, as they were to arise, in their order, it would still, perhaps, be impossible to form any human institu­tion, which should accommodate itself to every situation in the progress. Interest, with some, an habitual veneration for anci­ent establishments, with all, an opinion of the present perfection of government, and a dread of encouraging a spirit of innova­tion, the bane of a well regulated society, have concured to prevent any regular plan of fundamental reformation in government, and to continue, as unalterably perfect, those institutions, which were adapted only to the weakness, ignorance, and barbarous manners of an infant people.

By the force of habit, and inveterate national prejudices, abuses are rendered [Page 287] sacred, and not unfrequently, come to be considered as rightful privileges; and those institutions, which were the offspring of chance or violence, to be extolled as the most perfect productions of reason, founded in the original and unalterable principles of nature. Such was the British govern­ment, and such has been the force of hab­itual prejudice upon the people of that kingdom. That government has, indeed, received, many improvements, with the improvements of the age; but they have generally been wrested by force from the reigning powers, or interposed in a revo­lution of the crown. Many respectable characters long considered them as so many violations of the most sacred rights. The greater part of the nation appear fully persuaded, that all farther improvements are impracticable, and that because their government was once the best, perhaps, which existed in the world, it must, through all the progressive advances in knowlege, in morals, and in manners, continue the best, a pattern of unchanging perfection, though, in its principles, it is much too limited for the present [...]te. It is probable that all improvement [...] will be opposed and prevented by those in power, who are interested in the present order of things, till the improvements of an [Page 288] enlightened age, shall produce a violent concussion in the combat with ancient prejudices, and struggle through a scene of tumult, outrage, and perhaps civil war, to arrive at some inconsiderable amelioration, in their constitution.

In the progress of social improvements, there usually arises a repugnancy, between the principles of the government, and the present morals and manners of the people. Hence we may learn to account for the constant superiority, in most nations, of private to political morality, as practised by the same individuals. The principles of a government, adapted to the limited occasions of a simple and infant state of society, tend in opposition to the progress of improvement, or to divert it into partial and devious channels. This must have a very pernicious effect, as well upon the administration of the government, as upon the morals, habits, and manners of the people. From this source, principally, has proceeded that corruption in the ad­ministration of government, that degenera­cy in the manners of the people, which has perpetually proved the ruin of the most celebrated civil institutions.

The consining of a people, who have arrived at a highly improved state of soci­ety, to the forms and principles of a gov­ernment, [Page 289] which originated in a simple, if not barbarous state of men and manners, may not unaptly be compared to a custom, which prevails among the Chinese. A small foot being reckoned the highest point of beauty, it is the universal practice with them, to confine the feet of their female infants, to prevent their growth. When arrived at maturity, the feet of the Chinese women, it is said, do not exceed in size those of an infant of six months old; so that from the disproportion of those members to the weight of the body, they appear rather to totter than walk. No less aukwardness of situation, no less perversion of nature must take place, in a nation, where the improvement of its civil and political institutions are limited, and not suffered to proceed in any degree of equality with the general improvements of the people.

In this point, the constitution of the United States of America, is distinguished from all other national establishment. It is not pretended to have attained the [...]chme of perfection, to the exclusion of future improvements. It is calculated to admit amendments, corresponding with the pro­gress of the citizens in social improvements, and political science. The idea of incor­porating, in the constitution itself, a plan [Page 290] of reformation, which, without encourag­ing a spirit of innovation, the parent of anarchy and final despotism, might enable the people, with deliberation, and more mature experience, to correct what should be, at any time, found wrong in the form, principles, or operation of the government, was first adopted, in practice, in some of the individual states of the confederacy. It had been found, not only practicable and safe in the exercise, but its happy effect in ameliorating the fundamental principles of the government, had, in several instanc­es, been fully evinced. This idea was taken up and pursued in framing the con­stitution of government for the United States. It is made a fundamental article of that constitution, that "Congress, when­ever two thirds of both houses shall deem it necessary, shall propose amendments to the constitution, or on application of two thirds of the several states, shall call a con­vention for proposing amendments, which in either case shall be valid to all intents and purposes, as parts of the constitution, when ratified by the legislatures of three fourths of the several states, or by conven­tions in three fourths thereof, as the one, or the other mode of ratification may be proposed by Congress." There are some restrictions on the power of making [Page 291] amendments. Among other things it is provided, that no state shall, without its consent, be deprived of its equal suffrage in the senate.

In virtue of the power vested in Con­gress, and reserved to the people and the states, by this article, several important amendments have already been adopted in the federal constitution; and we have reason to believe, that whatever, on expe­rience, shall be found deficient in principle, will be added; whatever shall be found dangerous to the rights of the people or the states, or impracticable in operation, will be retrenched and corrected. The wisdom, which formed it, aided and ma­tured by experience, may, not only extend its principles, with the progress of social improvements, but carry it to a greater degree of practical perfection than any thing, which has yet been known in go­vernment.

Let us not, then, rashly, or from the pride of a prophetic spirit, conclude that this beautiful system is, with the crazy empires of antiquity, destined to a speedy dissolution; or that it must in time, thro' the degeneracy of the people, and a cor­ruption of its principles, of necessity give place to a system of remediless tyranny and oppression. Let us rather, while we con­ceive [Page 292] a rational hope, that it will endure as long as the successive generations of men, attend, with the calmness of philo­sophy, and the persevering zeal of patriot­ism, to the enjoyment of its blessings, and the improvement of its principles. To an ardent wish for its perpetual duration, let us add the only means of securing it. Let us endeavor to diffuse, extensively, the principles of useful knowlege, and to im­press, indelibly, on the minds of the rising generation, the sentiments of liberal virtue, and genuine patriotism.