A Collection of Essays and Fugitiv Writings

No. XXVII

 HARTFORD, FEBRUARY, 1790.

The laws which respect property, hav, in all civilized communities, formed the most important branch of municipal regulations. Of theze, the laws which direct the division and desent of lands, constitute the first class; for on theze, in a great mezure, depend the genius of guvernment and the complection of manners.

Savages hav very few regulations respecting property; for there are but few things to which their desires or necessities prompt them to lay claim. Some very rude nations seem to hav no ideas of property, especially in lands; but the American tribes, even when first discuvered, claimed the lands on which they lived, and the hunting grounds of eech tribe were marked from thoze of its nabors, by rivers or other natural boundaries. The Mexican and Peruvian Indians had indeed advanced very far towards a state of civilization; and land with them had acquired almost an European valu; but the northern tribes, yet in the hunter state, would often barter millions of akers for a handful of trinkets and a few strings of wampum.

In the progress of nations, land acquires a valu, proportioned to the degree of populousness; and other objects grow into estimation, by their utility, convenience, or some plezure they afford to the imagination.

In attending to the principles of guvernment, the leeding idea that strikes the mind, iz, that political power depends mostly on property; consequently guvernment will take its complection from the divisions of property in the state.

In despotic states, the subjects must not possess property in fee; for an exclusiv possession of lands inspires ideas of independence, fatal to despotism. To support such guvernments, it iz necessary that the laws should giv the prince a sovereign control over the property az wel az the lives of hiz subjects. There are however very few countries, where the guvernment iz so purely arbitrary, that the peeple can be deprived of life and estate, without some legal formalities. Even when the first possession waz the voluntary gift of the prince, grants or concessions, sanctioned by prescription, hav often established rights in the subject, of which he cannot be deprived without a judicial process.

In Europe the feudal system of tenures haz given rise to a singular species of guvernment. Most of the countries are said to be guverned by monarkies; but many of the guvernments might, with propriety, be called aristocratic republics. The barons, who possess, the lands, hav most of the power in their own hands. Formerly the kings were but lords of a superior rank, primi inter pares; and they were originally electiv. This iz stil the case in Poland, which continues to be what other states in Europe were, an aristocratic republic. But from the twelfth to the sixteenth century, the princes, in many countries, were struggling to circumscribe the power of the barons, and their attempts, which often desolated their dominions, were attended with various success. What they could not accomplish by force, they sometimes obtained by stratagem. In some countries the commons were called in to support the royal prerogativs, and thus obtained a share in legislation, which haz since been augmented by vast accessions of power and influence, from a distribution and encreese of welth. This haz been the case in England. In other countries, the prince haz combined with the barons to depress the peeple. Where the prince holds the privilege of disposing of civil, military and ecclesiastical offices, it haz been eezy to attach the nobility to hiz interest, and by this coalition, peece haz often been secured in a kingdom; but the peeple hav been kept in vassalage. Thus by the laws of the feudal system, most of the commons in Europe are kept in a state of dependence on the great landholders.

But commerce haz been favorable to mankind. Az the rules of succession to estates, every where established in Europe, are calculated to aggrandize the few at the expense of the many, commerce, by creating and accumulating personal estate, haz introduced a new species of power to ballance the influence of the landed property. Commerce found its way from Italy and the eest, to Germany and England, diffusing in its progress freedom, knowlege and independence. Commerce iz favorable to freedom; it flurishes most in republics; indeed a free intercourse by trade iz almost fatal to despotism; for which reezon, some princes lay it under severe restrictions: In other countries it iz discuraged by public opinion, which renders trade disreputable. This iz more fatal to it, than the edicts of tyrants.

The basis of a democratic and a republican form of government, iz, a fundamental law, favoring an equal or rather a general distribution of property. It iz not necessary nor possible that every citizen should hav exactly an equal portion of land and goods, but the laws of such a state should require an equal distribution of intestate estates, and bar all perpetuities. Such laws occasion constant revolutions of property, and thus hold out to all men equal motivs to vigilance and industry. They excite emulation, by giving every citizen an equal chance of being rich and respectable.

In no one particular do the American states differ from European nations more widely, than in the rules which regulate the tenure and distribution of lands. This circumstance alone wil, for ages at leest, prezerve a government in the united states, very different from any which now exists or can arize in Europe.

In New England, intestate estates desend to all the children or other heirs in equal portions, except to the oldest son, who haz two shares. This exception in favor of the oldest son, waz copied from the levitical code, which waz made the basis of the first New England institutions. The legislature of Massachusetts, at their May session, 1789, abolished that absurd exception; and nothing but inveterate habit keeps it alive in the other states.152

In consequence of theze laws, the peeple of New England enjoy an equality of condition, unknown in any other part of the world. To the same cause may be ascribed the rapid population of theze states; for estates by division are kept small, by which meens every man iz obliged to labor, and labor iz the direct cause of population. For the same reezon, the peeple of theze states, feel and exert the pride of independence. Their equality makes them mild and condesending, capable of being convinced and guverned by persuasion; but their independence renders them irritable and obstinate in resisting force and oppression. A man by associating familiarly with them, may eezily coax them into hiz views, but if he assumes any airs of superiority, he iz treeted with az little respect az a servant. The principal inconvenience arizing from theze dispositions iz, that a man who happens to be a little distinguished for hiz property or superior education iz ever exposed to their envy, and the tung of slander iz bizzy in backbiting him. In this manner, they oppoze distinctions of rank, with great success. This however iz a private inconvenience; but there iz an evil, arising from this jealousy, which deeply affects their guvernment. Averse to distinctions, and reddy to humble superiority, they become the dupes of a set of artful men, who, with small talents for business and no regard for the public interest, are always familiar with every class of peeple, slyly hinting something to the disadvantage of great and honest men, and pretending to be frends to the public welfare. The peeple are thus guverned at times by the most unqualified men among them. If a man wil shake hands with every one he meets, attend church constantly, and assume a goodly countenance; if he wil not swear or play cards, he may arrive to the first offices in the guvernment, without one single talent for the proper discharge of hiz duty; he may even defraud the public revenu and be accused of it on the most indubitable evidence, yet by laying hiz hand on hiz brest, casting hiz eyes to heaven, and calling God to witness hiz innocence, he may wipe away the popular suspicions, and be a fairer candidate for preferment than before hiz accusation. So far az the harts of the peeple are concerned, the disposition here mentioned iz a high recommendation, for it proves them mild, unsuspecting and humane: But guvernment suffers a material injury from this turn of mind; and were it not for a few men who are boldly honest, and indefatigable in detecting impositions on the public, the guvernment of theze states would always be, az it often iz, in the hands of the weekest, or wickedest of the citizens.

The same equality of condition haz produced a singular manner of speeking among the peeple of New England.153 But the inhabitants of all the large towns, wel bred citizens, are excepted from this remark.

Altho the principle iz tru that a general distribution of lands iz the basis of a republican form of guvernment, yet there iz an evil arising out of this distribution, which the New England states now feel, and which wil increase with the population of the country. The tracts of land first taken up by the settlers, were not very considerable; and theze having been repeetedly divided among a number of heirs, hav left the present proprietors almost without subsistence for their families. Vast numbers of men do not possess more than thirty or forty akers eech, and many not half the quantity. It iz with difficulty that such men can support families and pay taxes. Indeed most of them are unable to do it; they involve themselves in det; the creditors take the little land they possess, and the peeple are driven, poor and helpless, into an uncultivated wilderness. Such are the effects of an equal division of lands among heirs; and such the causes of emigration to the western territories. Emigration indeed iz a present remedy for the evil; but when settlements hav raized the valu of the western lands neerly to that on the Atlantic coast, emigrations wil mostly ceese. They wil not entirely ceese, until the continent iz peepled to the Pacific ocean; and that period iz distant; but whenever they ceese, our republican inhabitants, unable to subsist on the small portions of land, assigned them by the laws of division, must hav recourse to manufactures. The holders of land wil be fewer in number, because monied men wil hav the advantage of purchasing lands very low of the necessitous inhabitants, who wil be multiplied by the very laws of the state, respecting landed property. Other laws however could not be tolerated in theze states. In Europe, provision iz made for younger sons, in the army, the church, the navy, or in the numerous manufactures of the countries. But in America, such provision cannot be made; and therefore our laws eezely provide for all the children, where they are not provided for by the parents.

By extending our views to futurity, we see considerable changes in the condition of theze republican states. The laws, by barring entailments, prevent the establishment of families in permanent affluence; we are therefore in little danger of a hereditary aristocracy. But the same laws, by dividing inheritances, tho their first effect iz to create equality, ultimately tend to impoverish a great number of citizens, and thus giv a few men, who commanded money, an advantage in procuring lands at less than their real valu. The evil iz increased in a state, where there iz a scarcity of cash, occasioned by the course of trade, or by laws limiting the interest on money loaned. Such iz the case in Connecticut. A man who haz money may purchase wel cultivated farms in that state for seventy, and sometimes for fifty per cent. of the real valu. Such a situation iz favorable to the accumulation of great estates, and the creation of distinctions; but while alienations of real estates are rendered necessary by the laws, the genius of the guvernment wil not be materially changed.

The causes which destroyed the ancient republics were numerous; but in Rome, one principal cause waz, the vast inequality of fortunes, occasioned partly by the stratagems of the patricians and partly by the spoils of their enemies, or the exactions of tribute in their conquered provinces. Rome, with the name of a republic, waz several ages loozing the spirit and principle. The Gracchi endevored to check the growing evil by an agrarian law; but were not successful. In Cesar's time, the Romans were ripened for a change of guvernment; the spirit of a commonwelth waz lost, and Cesar waz but an instrument of altering the form, when it could no longer exist. Cesar iz execrated az the tyrant of hiz country; and Brutus, who stabbed him, iz applauded az a Roman. But such waz the state of things in Rome, that Cesar waz a better ruler than Brutus would hav been; for when the spirit of a guvernment iz lost, the form must change.

Brutus would hav been a tyrannical demagogue, or hiz zeel to restore the commonwelth would hav protracted the civil war and factions which raged in Rome and which finally must hav subsided in monarky. Cesar waz absolute, but hiz guvernment waz moderate, and hiz name waz sufficient to repress faction and prezerve tranquillity. The zeel of Brutus waz intemperate and rash; for when abuses hav acquired a certain degree of strength; when they are interwoven with every part of government, it iz prudence to suffer many evils, rather than risk the application of a violent remedy.

How far the Roman history furnishes the data, on which the politicians of America may calculate the future changes in our form of guvernment, iz left to every man's own opinion. Our citizens now hold lands in fee; this renders them bold in independence: They all labor, and therefore make hardy soldiers; they all reed, and of course understand their rights; they rove uncontrolled in the forest; therefore they know the use of arms. But wil not poor peeple multiply, and the possessions of real estates be diminished in number, and increesed in size? Must not a great proportion of our citizens becum manufacturers and thus looz the bodies and the spirit of soldiers? While the mass of knowlege wil be increesed by discuveries and experience, wil it not be confined to fewer men? In short, wil not our forests be levelled, or confined to a few proprietors? and when our peeple ceese to hunt, will not the body of them neglect the use of arms? Theze are questions of magnitude; but the present generation can answer them only in prospect and speculation. At any rate, the genius of every guvernment must addapt itself to the peculiar state and spirit of the peeple who compose the state, and when the Americans looz the principles of a free guvernment, it follows that they wil speedily looz the form. Such a change would, az in Rome, be ascribed to bad men; but it is more rational to ascribe it to an imperceptible progress of corruption, or thoze insensible changes which steel into the best constitutions of government.

New England waz originally settled by a religious sect, denominated puritans, who fled from the severe restraints imposed upon dissenters in the reign of king James I. Placed beyond the feer of control, they formed sistems of civil and ecclesiastical government, exactly suited to their rigid notions. All their institutions wear marks of an enthusiastic zeel for religion. Removed from the tyranny of one church, they vibrated to the other extreme, and with an ardor to bild up Christ's kingdom, in what they quaintly call, a howling wilderness, they established a tyranny of the severest kind over the consciences and rights of their own society, and by arbitrary decrees banished thoze who dissented from them upon the most metaphisical points. It waz a law of the first settlers at Boston, that none could be free men and entitled to vote for civil rulers, who were not in full communion with the church; and none could be admitted to full communion, without the recommendation of a clergyman. Theze laws threw all the power of the state into the hands of the clergy.154 It iz equally astonishing and ridiculous to the posterity of thoze godly peeple, to find the church and state, in the infancy of the settlement in America, rent with discord upon the simple question, whether "sanctification preceeds justification." Yet hundreds of councils were held upon this or similar points, and a dissent from the common opinion on such trifling questions, waz heresy, punishable with excommunication and banishment.

But candor requires some apology to be made for our ancestors. Bigotry waz not confined to the New England settlers; it waz the characteristic of the age. The first settlers in New Jersey, Virginia and Pensylvania, and indeed in most of the colonies, prohibited witchcraft under penalty of deth; tho the laws seem not to have been executed any where except in Massachusetts. But the fame gloomy superstition reigned in England. The statutes of Henry VIII. and James I. making witchcraft and sorcery felony without benefit of clergy, upon which many persons suffered deth, were not repeeled, till the ninth yeer of George II. or about 1736. Just before the restoration in 1660, no less than thirteen gypsies were condemned at one Suffolk assizes, and executed.

But why should I go to former times and other states for apologies? Iz it not eezy to find superstition and prejudices among ourselves equally absurd and indefensible? Does not a law against playing with cards proceed from theze prejudices? What iz the difference between playing with spotted papers and spotted boards? Chequers, back-gammon and chess are not prohibited, and the games are az enticing az thoze which are prohibited. Are not such games az capable of conceelment az any domestic concerns? Wil laws ever reech them? Haz the legislature any right to control my family amuzements? In short, do laws ever suppress or restrain any species of game? By no meens; on the other hand, I can testify from actual observation, that prohibited games are practized az much az others, and in states where penalties against them are most severe, gaming iz the most frequent.

Again, are laws against witchcraft more absurd than laws against usury? Did not both originate in ages of monkish bigotry, and in the same religious scruples? Iz it not az illiberal a prejudice to say, that a man shall hav but six per cent. profit on money loaned, yet may make fifty per cent. if he can, on the same valu in goods, houses or lands; az it iz to say, that a man shal not be a fanatic, or a woman hav the hysterics? Haz not any man az good a right to be whimsical or superstitious, az a legislature to be inconsistent? Az to the right, I see no difference. A man who iz oppressed to an obvious degree by a rich creditor, wil find releef against the oppressor, in a court of equity. A fanatic, who should keep a naborhood in an uproar by hiz religious worship, would be punishable for a misdemeenor. But when two men can make a voluntary contract for eight per cent. interest, a contract which eech deems favorable for himself, that he should be punishable with a hevvy forfiture, iz a curosity in legislation, which ought to be placed on the catalog of papal bulls.

Superstition appeers in all ages under different aspects. The sailor who repozes confidence in the horse-shoe on hiz mast, the Roman who counts hiz beeds, the judge who gravely sentences a witch to the gallows, and the legislator who thinks it a crime to receev great profits for the use of money, may be equally conscientious, and to posterity in some future time, wil appeer to be equally mistaken.

But while we contemplate the censurable laws of the first New England settlers, let us not pass by many excellent regulations which proceed from their religious zeel, and which hav been the basis of institutions the most favorable to morals, to freedom and happiness.

In the first place, our ancestors made provision for supporting preechers of the gospel in every village. Abating some rigid maxims, which were propagated and maintained for the first century, with too much zeel, the influence of the clergy, in New England, haz been productiv of the happiest effects. The clergy, being wel informed men, and scattered among the peeple at large, hav been instrumental in diffusing knowlege. Frends to order, and respected by their parishioners, they hav at times saved the states from turbulence and disorder. The advocates of liberty, they espoused the American revolution with firmness, and contributed to unite the peeple in a steddy opposition to British mezures; and since the establishment of peece, they hav had no small influence in oppozing mezures, fatal to good faith and the rights of freemen.

The effects of their influence are the most generally vizible in Connecticut, where every town iz well settled and supports a clergyman. This state never experienced an insurrection; its opposition to the British power, during the war, waz steddy and unanimous; and tender laws and paper currency hav been uniformly reprobated since the revolution.

The old settlements in Massachusetts may fall under the same character; but the western and northern counties are exceptions. In a great proportion of the townships, which hav been lately settled, there iz no clergyman or other person of superior information, to direct the popular councils and check a rizing opposition. It waz obzerved, during the late insurrections in thoze counties, that the towns which were destitute of any wel informed men, furnished the most numerous and most turbulent hosts of insurgents. The wel informed counties on the see coast furnished scarcely a man.

In addition to this, it may be remarked, that the mildness of manners and the hospitality which prevail among the yemanry of New England, are ascribeable in a great meazure, to a general administration of religious ordinances. The distinction in this respect, iz so great between New England and some other parts of America, that in travelling among the settlers on the frontiers of Vermont, a man may ascertain where the settlers were born and educated, merely by their manner of receeving and treeting him. This iz asserted from actual obzervation.