A Collection of Essays and Fugitiv Writings

But you say, that trial by jury is an unalienable right, that ought not to be trusted with our rulers. Why not? If it is such a darling privilege, will not Congress be as fond of it, as their constituents? An elevation into that council, does not render a man insensible to his privileges, nor place him beyond the necessity of securing them. A member of Congress is liable to all the operations of law, except during his attendance on public business; and should he consent to a law, annihilating any right whatever, he deprives himself, his family and estate, of the benefit resulting from that right, as well as his constituents. This circumstance alone, is a sufficient security.

But, why this outcry about juries? If the people esteem them so highly, why do they ever neglect them, and suffer the trial by them to go into disuse? In some States, Courts of Admiralty have no juries, nor Courts of Chancery at all. In the City Courts of some States, juries are rarely or never called, altho the parties may demand them; and one State, at least, has lately passed an act, empowering the parties to submit both law and fact to the court. It is found, that the judgment of a court gives as much satisfaction, as the verdict of a jury; for the court are as good judges of fact, as juries, and much better judges of law. I have no desire to abolish trials by jury, altho the original design and excellence of them, is in many cases superseded. While the people remain attached to this mode of deciding causes, I am confident, that no Congress can wrest the privilege from them.

But, gentlemen, our legal proceedings want a reform. Involved in all the mazes of perplexity, which the chicanery of lawyers could invent, in the course of five hundred years, our road to justice and redressis tedious, fatiguing and expensiv. Our judicial proceedings are capable of being simplified, and improved in almost every particular. For mercy's sake, gentlemen, do not shut the door against improvement. If the people of America, should ever spurn the shackles of opinion, and venture to leave the road, which is so overgrown with briers and thorns, as to strip a man's clothes from his back as he passes, I am certain they can devise a more easy, safe, and expeditious mode of administering the laws, than that which harasses every poor mortal, that is wretched enough to want legal justice. In States where very respectable merchants, have repeatedly told me, they had rather lose a debt of fifty pounds, than attempt to recover it by a legal process, one would think that men, who value liberty and property, would not restrain any government from suggesting a remedy for such disorders.

Another right, which you would place beyond the reach of Congress, is the writ of habeas corpus. Will you say that this right may not be suspended in any case? You dare not. If it may be suspended in any case, and the Congress are to judge of the necessity, what security have you in a declaration in its favor? You had much better say nothing upon the subject.

But you are frightened at a standing army. I beg you, gentlemen, to define a standing army. If you would refuse to giv Congress power to raise troops, to guard our frontiers, and garrison forts, or in short, to enlist men for any purpose, then we understand you; you tie the hands of your rulers, so that they cannot defend you against any invasion. This is protection, indeed! But if Congress can raise a body of troops for a year, they can raise them for a hundred years, and your declaration against standing armies can have no other effect, than to prevent Congress from denominating their troops, a standing army. You would only introduce into this country the English farce of mechanically passing an annual bill for the support of troops which are never disbanded.

You object to the indefinite power of taxation in Congress. You must then limit the exercise of that power by the sums of money to be raised; or leaving the sums indefinite, must prescribe the particular mode in which, and the articles on which the money is to be raised. But the sums cannot be ascertained, because the necessities of the States cannot be foreseen nor defined. It is beyond even your wisdom and profound knowlege, gentlemen, to ascertain the public exigencies, and reduce them to the provisions of a constitution. And if you would prescribe the mode of raising money, you will meet with equal difficulty. The different States have different modes of taxation, and I question much whether even your skill, gentlemen, could invent a uniform system that would fit easy upon every State. It must therefore be left to experiment, with a power that can correct the errors of a system, and suit it to the habits of the people. And if no uniform mode will answer this purpose, it will be in the power of Congress to lay taxes in each State, according to its particular practice.

You know that requisitions on the States are ineffectual; that they cannot be rendered effectual, but by a compulsory power in Congress; that without an efficient power to raise money, government cannot secure person, property or justice; that such power is as safely lodged in your Representativs in Congress, as it is in your Representativs in your distinct Legislatures.

You would likewise restrain Congress from requiring excessiv bail or imposing excessiv fines and unusual punishment. But unless you can, in every possible instance, previously define the words excessiv and unusual; if you leave the discretion of Congress to define them on occasion, any restriction of their power by a general indefinit expression, is a nullity—mere formal nonsense. What consummate arrogance must you possess, to presume you can now make better provision for the government of these States, during the course of ages and centuries, than the future Legislatures can, on the spur of the occasion! Yet your whole reasoning on the subject implies this arrogance, and a presumption that you have a right to legislate for posterity!

But to complete the list of unalienable rights, you would insert a clause in your declaration, that every body shall, in good weather, hunt on his own land, and catch fish in rivers that are public property. Here, gentlemen, you must have exerted the whole force of your genius! Not even the all important subject of legislating for a world, can restrain my laughter at this clause! As a supplement to that article of your bill of rights, I would suggest the following restriction:—"That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter's night, or even on his back, when he is fatigued by lying on his right." This article is of just as much consequence as the eighth clause of your proposed bill of rights.

But to be more serious, gentlemen, you must have had in idea the forest laws in Europe, when you inserted that article; for no circumstance that ever took place in America, could have suggested the thought of a declaration in favor of hunting and fishing. Will you forever persist in error? Do you not reflect that the state of property in America, is directly the reverse of what it is in Europe? Do you not consider, that the forest laws in Europe originated in feudal tyranny, of which not a trace is to be found in America? Do you not know that in this country almost every farmer is lord of his own soil? That instead of suffering under the oppression of a monarch and nobles, a class of haughty masters, totally independent of the people, almost every man in America is a lord himself, enjoying his property in fee? Where then the necessity of laws to secure hunting and fishing? You may just as well ask for a clause, giving license for every man to till his own land, or milk his own cows. The barons in Europe procured forest laws to secure the right of hunting on their own land, from the intrusion of those who had no property in lands. But the distribution of land in America, not only supersedes the necessity of any laws upon this subject, but renders them absolutely trifling. The same laws which secure the property in land, secure to the owner the right of using it as he pleases.

But you are frightened at the prospect of a consolidation of the States. I differ from you very widely. I am afraid, after all our attempts to unite the States, that contending interests, and the pride of State sovereignties, will either prevent our union, or render our federal government weak, slow and inefficient. The danger is all on this side. If any thing under heaven now endangers our liberties and independence, it is that single circumstance.

You harp upon that clause of the new constitution, which declares, that the laws of the United States, &c. shall be the supreme law of the land; when you know that the powers of the Congress are defined, to extend only to those matters which are in their nature and effects, general. You know, the Congress cannot meddle with the internal police of any State, or abridge its sovereignty. And you know, at the same time, that in all general concerns, the laws of Congress must be supreme, or they must be nothing.

No. XIV

 PHILADELPHIA, MARCH, 1787.

On TEST LAWS, OATHS of ALLEGIANCE and ABJURATION, and PARTIAL EXCLUSIONS from OFFICE

To change the current of opinion, is a most difficult task, and the attempt is often ridiculed. For this reason, I expect the following remarks will be passed over with a slight reading, and all attention to them cease with a hum.

The revisal of the test law has at length passed by a respectable majority of the Representativs of this State. This is a prelude to wiser measures; people are just awaking from delusion. The time will come (and may the day be near!) when all test laws, oaths of allegiance, abjuration, and partial exclusions from civil offices, will be proscribed from this land of freedom.

Americans! what was the origin of these discriminations? What is their use?

They originated in savage ignorance, and they are the instruments of slavery. Emperors and generals, who wished to attach their subjects to their persons and government; who wished to exercise despotic sway over them, or prosecute villanous wars, (for mankind have always been butchering each other) found the solemnity of oaths had an excellent effect on poor superstitious soldiers and vassals; oracles, demons, eclipses; all the terrifying phenomena of nature, have at times had remarkable effects in securing the obedience of men to tyrants. Oaths of fealty, and farcical ceremonies of homage, were very necessary to rivet the chains of feudal vassals; for the whole system of European tenures was erected on usurpation, and is supported solely by ignorance, superstition, artifice, or military force. Oaths of allegiance may possibly be still necessary in Europe, where there are so many contending powers contiguous to each other: But what is their use in America? To secure fidelity to the State, it will be answered. But where is the danger of defection? Will the inhabitants join the British in Nova Scotia or Canada? Will they rebel? Will they join the savages, and overthrow the State? No; all these are visionary dangers. My countrymen, if a State has any thing to fear from its inhabitants, the constitution or the laws must be wrong. Danger cannot possibly arise from any other cause.

Permit me to offer a few ideas to your minds; and let them be the subject of more than one hour's reflection.

An oath creates no new obligation. A witness, who swears to tell the whole truth, is under no new obligation to tell the whole truth. An oath reminds him of his duty; he swears to do as he ought to do; that is, he adds an express promise to an implied one. A moral obligation is not capable of addition or diminution.

When a man steps his foot into a State, he becomes subject to its general laws. When he joins it as a member, he is subject to all its laws. The act of entering into society, binds him to submit to its laws, and to promote its interest. Every man, who livs under a government, is under allegiance to that government. Ten thousand oaths do not increase the obligation upon him to be a faithful subject.

But, it will be asked, how shall we distinguish between the friends and enemies of the government? I answer, by annihilating all distinctions. A good constitution, and good laws, make good subjects. I challenge the history of mankind to produce an instance of bad subjects under a good government. The test law in Pensylvania has produced more disorder, by making enemies in this State, than have cursed all the union besides. During the war, every thing gave way to force; but the feelings and principles of war ought to be forgotten in peace.

Abjuration! a badge of folly, borrowed from the dark ages of bigotry. If the government of Pensylvania is better than that of Great Britain, the subjects will prefer it, and abjuration is perfectly nugatory. If not, the subject will have his partialities in spite of any solemn renunciation of a foreign power.

But what right has even the Legislature to deprive any class of citizens of the benefits and emoluments of civil government? If any men have forfeited their lives or estates, they are no longer subjects; they ought to be banished or hung. If not, no law ought to exclude them from civil emoluments. If any have committed public crimes, they are punishable; if any have been guilty, and have not been detected, the oath, as it now stands, obliges them to confess their guilt. To take the oath, is an implicit acknowlegement of innocence; to refuse it, is an implicit confession that the person has aided and abetted the enemy. This is rank despotism. The inquisition can do no more than force confession from the accused.

I pray God to enlighten the minds of the Americans. I wish they would shake off every badge of tyranny. Americans!—The best way to make men honest, is to let them enjoy equal rights and privileges; never suspect a set of men will be rogues, and make laws proclaiming that suspicion. Leave force to govern the wretched vassals of European nabobs, and reconcile subjects to your own constitutions by their excellent nature and beneficial effects. No man will commence enemy to a government which givs him as many privileges as his neighbors enjoy.

No. XV

SKETCHES of the RISE, PROGRESS and CONSEQUENCES of the late REVOLUTION

Written in the years 1787, 1788, and 1789; now republished, with material corrections, and a Letter from the late Commander in Chief, explaining the Circumstances and Proceedings, preparatory to the Capture of Lord Cornwallis.

America was originally peopled by uncivilized nations, which lived mostly by hunting and fishing. The Europeans, who first visited these shores, treating the nativs as wild beasts of the forest, which have no property in the woods where they roam, planted the standard of their respectiv masters where they first landed, and in their names claimed the country by right of discovery.44 Prior to any settlement in North America numerous titles of this kind were acquired by the English, French, Spanish, and Dutch navigators, who came hither for the purposes of fishing and trading with the nativs. Slight as such titles were, they were afterwards the causes of contention between the European nations. The subjects of different princes often laid claim to the same tract of country, because both had discovered the same river or promontary; or because the extent of their respectiv claims was indeterminate.

While the settlements in this vast uncultivated country were inconsiderable and scattered, and the trade of it confined to the bartering of a few trinkets for furs, a trade carried on by a few adventurers, the interfering of claims produced no important controversy among the settlers or the nations of Europe. But in proportion to the progress of population, and the growth of the American trade, the jealousies of the nations, which had made early discoveries and settlements on this coast, were alarmed; ancient claims were revived; and each power took measures to extend and secure its own possessions at the expense of a rival.

By the treaty of Utrecht in 1713, the English claimed a right of cutting logwood in the Bay of Campeachy, in South America. In the exercise of this right, the English merchants had frequent opportunities of carrying on a contraband trade with the Spanish settlements on the continent. To remedy this evil, the Spaniards resolved to annihilate a claim, which, though often acknowleged, had never been clearly ascertained. To effect this design, they captured the English vessels, which they found along the Spanish Main, and many of the British subjects were doomed to work in the mines of Potosi.

Repeated severities of this kind at length (1739) produced a war between England and Spain. Porto Bello was taken from the Spaniards, by Admiral Vernon. Commodore Anson, with a squadron of ships, sailed to the South Seas, distressed the Spanish settlements on the western shore of America, and took a galleon, laden with immense riches. But in 1741 a formidable armament, destined to attack Carthagena, under the command of Lord Cathcart, returned unsuccessful, with the loss of upwards of twelve thousand British soldiers and seamen; and the defeat of the expedition, raised a clamor against the minister, Sir Robert Walpole, which produced a change in the administration. This change removed the scene of war to Europe, so that America was not immediately affected by the subsequent transactions; except that Louisburgh, the principal fortress of Cape Breton, was taken from the French by General Pepperell, assisted by Commodore Warren and a body of New England troops.

This war was ended in 1748 by the treaty of peace signed at Aix la Chapelle, by which restitution was made on both sides of all places taken during the war.

Peace, however, was of short duration. The French possessed Canada, and had made considerable settlements in Florida, claiming the country on both sides of the Missisippi, by right of discovery. To secure and extend their claims, they established a line of forts, on the English possessions, from Canada to Florida. They had secured the important pass at Niagara, and erected a fort at the junction of the Allegany and Monongahela rivers, called Fort Du Quesne. They took pains to secure the friendship and assistance of the nativs, encroachments were made upon the English possessions, and mutual injuries succeeded. The disputes among the settlers in America, and the measures taken by the French to command all the trade of the St. Lawrence river on the north, and of the Missisippi on the south, excited a jealousy in the English nation, which soon broke forth in open war.

In 1756, four expeditions were undertaken in America against the French. One was conducted by General Monckton, who had orders to drive the French from the encroachments on the province of Nova Scotia. This expedition was attended with success. General Johnson was ordered, with a body of troops, to take possession of Crown Point, but he did not succeed. General Shirley commanded an expedition against the fort at Niagara, but lost the season by delay. General Braddock marched against fort Du Quesne, but in penetrating through the wilderness, he incautiously fell into an ambuscade and suffered a total defeat. General Braddock was killed, but a part of his troops were saved by the prudence and bravery of General Washington, at this time a Colonel, who then began to exhibit proofs of those military talents, by which he afterwards conducted the armies of America to victory, and his country to independence. The ill success of these expeditions left the English settlements in America exposed to the depredations of both the French and Indians. But the war now raged in Europe and the East Indies, and engaged the attention of both nations in those quarters.

It was not until the campaign in 1758, that affairs assumed a more favorable aspect in America. But upon a change of administration, Mr. Pitt was appointed Prime Minister, and the operations of war became more vigorous and successful. General Amherst was sent to take possession of Cape Breton; and after a warm siege, the garrison of Louisburgh surrendered by capitulation. General Forbes was successful in taking possession of fort Du Quesne, which the French thought fit to abandon. But General Abercrombie, who commanded the troops destined to act against the French at Crown Point and Ticonderoga, attacked the lines at Ticonderoga, where the enemy were strongly entrenched, and was defeated with a terrible slaughter of his troops. After his defeat, he returned to his camp at Lake George.

The next year, more effectual measures were taken to subdue the French in America. General Prideaux and Sir William Johnson began the operations of the campaign by taking the French fort near Niagara.45 General Amherst took possession of the forts at Crown Point and Ticonderoga, which the French had abandoned.

But the decisiv blow, which proved fatal to the French interests in America, was the defeat of the French army, and the taking of Quebec, by the brave general Wolfe. This hero was slain in the beginning of the action, on the plains of Abram, and Monsieur Montcalm, the French commander, likewise lost his life. The loss of Quebec was soon followed by the capture of Montreal, by General Amherst, and Canada has remained ever since in possession of the English.

Colonel Grant, in 1761, defeated the Cherokees in Carolina, and obliged them to sue for peace. The next year, Martinico was taken by Admiral Rodney and General Monkton; and also the islands of Grenada, St. Vincents, and others. The capture of these was soon followed by the surrender of the Havanna, the capital of the island of Cuba.

In 1763, a definitiv treaty of peace was concluded at Paris, between Great Britain, France and Spain, by which the English ceded to the French several islands in the West Indies, but were confirmed in the possession of all North America on this side the Missisippi, except New Orleans, and a small district of the neighboring country.

But this war, however brilliant the success, and glorious the event, proved the cause of great and unexpected misfortunes to Great Britain. Engaged with the combined powers of France and Spain, during several years, her exertions were surprising, and her expense immense. To discharge the debts of the nation, the parliament was obliged to have recourse to new expedients for raising money. Previous to the last treaty in 1763, the parliament had been satisfied to raise a revenue from the American Colonies by monopoly of their trade.

At the beginning of the last war with France, commissioners from many of the colonies had assembled at Albany, and proposed that a great council should be formed by deputies from the several colonies, which, with a general Governor to be appointed by the crown, should be empowered to take measures for the common safety, and to raise money for the execution of their designs. This proposal was not relished by the British ministry; but in place of this plan, it was proposed, that the Governors of the colonies, with the assistance of one or two of their council, should assemble and concert measures for the general defence; erect forts, levy troops, and draw on the treasury of England for monies that should be wanted; but the treasury to be reimbursed by a tax on the colonies, to be laid by the English parliament. To this plan, which would imply an avowal of the right of parliament to tax the colonies, the provincial assemblies objected with unshaken firmness. It seems, therefore, that the British parliament, before the war, had it in contemplation to exercise the right they claimed of taxing the colonies at pleasure, without permitting them to be represented. Indeed it is obvious that they laid hold of the alarming situation of the colonies about the year 1754, and 1755, to force them into an acknowlegement of the right, or to the adoption of measures that might afterwards be drawn into precedent. The colonies however, with an uncommon foresight and firmness, defeated all their attempts. The war was carried on by requisitions on the colonies for supplies of men and money, or by voluntary contributions.