A Collection of Essays and Fugitiv Writings

No. II

 NEW YORK, 1788.

All mankind are, by nature, free, and have a right to enjoy life, liberty and property.

One person has no right to take from another his life, health, peace, or good name; to take away or lessen his freedom of thinking and acting, or to injure his estate in the smallest degree.

A collection of individuals forms a society; and every society must have government, to prevent one man from hurting another, and to punish such as commit crimes. Every person's safety requires that he should submit to be governed; for if one man may do harm without suffering punishment, every man has the same right, and no person can be safe.

It is necessary therefore that there should be laws to control every man. Laws should be made by consent or concurrence of the greatest part of the society.

The whole body of people in society is the sovereign power or state; which is called, the body politic. Every man forms a part of this state, and so has a share in the sovereignty; at the same time, as an individual, he is a subject of the state.

When a society is large, the whole state cannot meet together for the purpose of making laws; the people therefore agree to appoint deputies, or representativs, to act for them. When these agents are chosen and met together, they represent the whole state, and act as the sovereign power. The people resign their own authority to their representativs; the acts of these deputies are in effect the acts of the people; and the people have no right to refuse obedience.

It is as wrong to refuse obedience to the laws made by our representativs, as it would be to break laws made by ourselves. If a law is bad and produces general harm, the people may appoint new deputies to repeal it; but while it is a law, it is the act and will of the sovereign power, and ought to be obeyed.

The people in free governments, make their own laws by agents or representativs, and appoint the executiv officers. An executiv officer is armed with the authority of the whole state and cannot be resisted. He cannot do wrong, unless he goes beyond the bounds of the laws.

An executiv officer can hardly be too arbitrary; for if the laws are good, they should be strictly executed and religiously obeyed: If they are bad, the people can alter or repeal them; or if the officer goes beyond his powers, he is accountable to those who appoint him. A neglect of good and wholesome laws is the bane of society.

Judges and all executiv officers should be made as much as possible, independent of the will of the people at large. They should be chosen by the representativs of the people and answerable to them only: For if they are elected by the people, they are apt to be swayed by fear and affection; they may dispense with the laws, to favor their friends, or secure their office. Besides, their election is apt to occasion party spirit, cabals, bribery and public disorder. These are great evils in a state, and defeat the purposes of government.

The people have a right to advise their representativs in certain cases, in which they may be well informed. But this right cannot often be exercised with propriety or safety: Nor should their instructions be binding on their representativs: For the people, most of whom live remote from each other, cannot always be acquainted with the general interest of the state; they cannot know all the reasons and arguments which may be offered for, or against a measure, by people in distant parts of the state; they cannot tell at home, how they themselves would think and act, in a general assembly of all the citizens.

In this situation, if the people of a certain district, bind their representativ to vote in a particular manner, they may bind him to do wrong. They make up their minds, upon a partial view of facts, and form a resolution, which they themselves, on a fair state of all the facts, in the general assembly, might see reasons to change. There have been instances, in which these binding, positiv instructions, have obliged a representativ to give his vote, contrary to the conviction of his own mind and what he thought the good of the state; consequently his vote was a violation of his oath.

But the opinions of the people should, if possible, be collected; for the general sense of a nation is commonly right. When people are well informed, their general opinion is perhaps always right. But they may be uninformed or misinformed and consequently their measures may be repugnant to their own interest. This is often the case, with particular districts of people; and hence the bad policy of giving binding instructions to representativs. The sense of a nation is collected by the opinions of people in particular districts; but as some of these opinions may be wrong, a representativ should be left with discretionary powers to act for the good of the state.

Representativs are chosen by the inhabitants of certain districts, because this is most convenient: But when they act as lawgivers, they act for the whole state. When a man is considering the propriety of a general measure, he is not to be influenced by the interest of a single district or part of a state; but by the collectiv interest of the whole state. A good lawgiver will not ask solely what is my interest, or the interest of my town or constituents? but, what will promote the interest of the community; 'what will produce the greatest possible good, to the greatest number of people?'

When a legislativ body makes laws, it acts for itself only, and can alter or repeal the laws when they become inconvenient. But when it makes grants or contracts, it act as a party, and cannot take back its grant, or change the nature of its contracts, without the consent of the other party. A state has no more right to neglect or refuse to fulfil its engagements, than an individual. There may be an exception in the case of a grant, for if a state has made a grant, which, contrary to its expectations, clearly endangers the safety of the community, it may resume that grant. The public safety is a consideration superior to all others. But the danger must be great and obvious; it must be generally seen and felt, before the state can be justified in recalling its grant. To take back a gift, or break a contract, for small causes or slight inconveniencies, is a most wanton abuse of power. Bargains, conveyances, and voluntary grants, where two parties are concerned, are sacred things; they are the supports of social confidence and security; they ought not to be sported with, because one party is stronger than the other; they should be religiously observed.

As the state has no right to break its own promises, so it has no right to alter the promises of individuals. When one man has engaged to pay his debt in wheat, and his creditor expects the promise to be fulfiled, the legislature has no right to say, the debt shall be paid in flax or horses. Such an act saps all the supports of good faith between man and man; it is the worst kind of tyranny.

For this reason, all tender laws, which oblige a creditor to take, for his debt, some article which he never intended nor engaged to take, are highly unjust and tyrannical. The intention of the contracting parties should be strictly regarded; the state may enforce that intention, but can never have a right to interfere and defeat it. A legislature has no right to put a bargain on any footing, but that on which the parties have placed it or are willing to place it.

If a state is poor, and people owe more money than can be procured, a legislature may perhaps go so far as to suspend the collection of debts; or to ordain that a certain part only of the debts shall be recoverable immediately, and the payment of the remainder suspended. This may ease the debtors; but can be justified in extreme cases only, when the people are generally and greatly involved.

A people should not generally be in debt: The consumers of goods should not get credit. Heavy and numerous debts are great evils to a state. If the people will giv and take extensiv credit, the state should check their imprudence, by putting debts out of the protection of law. When it becomes a practice to collect debts by law, it is a proof of corruption and degeneracy among the people. Laws and courts are necessary to settle controverted points between man and man; but a man should pay an acknowledged debt, not because there is a law to oblige him, but because it is just and honest, and because he has PROMISED to pay it.

Money, or a medium in trade, is necessary in all great states; but too much is a greater evil than too little. When people can get money without labor, they neglect business and become idle, prodigal and vicious; and when they have nothing but money, they are poor indeed. Spain was ruined by its mines of gold and silver in South America. That kingdom possessed all the money in Europe, and yet was the poorest; it will never be rich and flourishing, till its mines are exhausted. The discovery of rich mines in this country, would be the greatest misfortune, that can befall the United States.

Money is a mere representativ of property; it is the change which facilitates trade. But the wealth of a country is its produce; and its strength consists in the number of its industrious inhabitants. A man cannot become rich, unless he earns more than he spends. It is the same with a country. The labouring men are the support of a nation.

The value of money depends on the quantity in circulation. A medium of trade respects all commercial nations; and like water, it will find its level. Money will go where it is wanted, if the people have any thing to purchase it. If one state or country has more money than another, it is a proof that the people are more industrious or saving. It would be happy for the world, if no more money could be made: There is already too much. Silver is become very burdensome, merely because there is too much in the world. If there were but one quarter of the money which now circulates, one quarter of a dollar would buy as much as a dollar will now.

Hence the mistaken policy of those people who attempt to increase the medium of trade by coinage or by a paper currency. They can add to the quantity, as much as they please; but not to the value. If America were shut out from all intercourse with other nations, and ten millions of dollars were circulating in the country, every article of life would have a certain price. If in this case, wheat should be one dollar a bushel, let the money be instantly doubled, the price of wheat would then be two dollars, and the price of every article would rise in the same proportion. So that twenty millions of dollars would be worth no more than ten, because they would buy no more of the useful commodities: America would be no richer in the one case than in the other.

But as there is a communication with other nations, a million of dollars, added to the circulating specie, does not increase the permanent medium in quantity; for just so much money as is added, will leave the country. If there is too much money in a country, the price of labor will rise, and the produce cannot find market abroad without a loss. This was the case with American produce, at the close of the war. If money is scarce in a country, the price of labor will be low, and consequently the produce of that country will be cheap at home, and a great profit will be made on the exportation. This profit will be returned, partly in goods and partly in money, and the country is enriched.

But the great principle, which should constitute the corner stone of government, is public justice. The fountain head should be pure, or the streams will be foul indeed. That Legislatures, or bodies politic, should make laws, annex penalties for disobedience, institute courts for deciding controversies and trying offenders, and execute punishments on those that are convicted; yet at the same time neglect to do justice themselves by paying their own debts; this is of all absurdities the most glaring. To compel individuals to perform contracts and yet break their own solemn promises; to punish individuals for neglect, and yet set a general example of delinquency, is to undermine the foundation of social confidence, and shake every principle of commutativ justice.

These are general principles in government and trade, and ought to be deeply impressed upon the minds of every American.

No. III

 NEW YORK, 1788.

One of the principal objections to the new Federal Constitution, is, that it contains no Bill of Rights. This objection, I presume to assert, is founded on ideas of government that are totally false. Men seem determined to adhere to old prejudices, and reason wrong, because our ancestors reasoned right. A Bill of Rights against the encroachments of Kings and Barons, or against any power independent of the people, is perfectly intelligible; but a Bill of Rights against the encroachments of an electiv Legislature, that is, against our own encroachments on ourselves, is a curiosity in government.

The English nation, from which we descended, have been gaining their liberties, inch by inch, by forcing concessions from the crown and the Barons, during the course of six centuries.17 Magna Charta, which is called the palladium of English liberty, was dated in 1215, and the people of England were not represented in Parliament till the year 1265. Magna Charta established the rights of the Barons and clergy against the encroachments of royal perogativ; but the commons or people were hardly noticed in that deed. There was but one clause in their favor, which stipulated, that "no villain or rustic should, by any fine, be bereaved of his carts, plows and instruments of husbandry." As for the rest, they were considered as a part of the property belonging to an estate, and were transferred, as other moveables, at the will of their owners. In the succeeding reign, they were permitted to send Representativs to Parliament; and from that time have been gradually assuming their proper degree of consequence in the British Legislature. In such a nation, every law or statute that defines the powers of the crown, and circumscribes them within determinate limits, must be considered as a barrier to guard popular liberty. Every acquisition of freedom must be established as a right, and solemnly recognized by the supreme power of the nation; lest it should be again resumed by the crown under pretence of ancient prerogativ: For this reason, the habeas corpus act passed in the reign of Charles 2d, the statute of the 2d of William and Mary, and many others which are declaratory of certain privileges, are justly considered as the pillars of English freedom.

These statutes are however not esteemed because they are unalterable; for the same power that enacted them, can at any moment repeal them; but they are esteemed, because they are barriers erected by the Representativs of the nation, against a power that exists independent of their own choice.

But the same reasons for such declaratory constitutions do not exist in America, where the supreme power is the people in their Representativs. The Bills of Rights, prefixed to several of the constitutions of the United States, if considered as assigning the reasons of our separation from a foreign government, or as solemn declarations of right against the encroachments of a foreign jurisdiction, are perfectly rational, and were doubtless necessary. But if they are considered as barriers against the encroachments of our own Legislatures, or as constitutions unalterable by posterity, I venture to pronounce them nugatory, and to the last degree, absurd.

In our governments, there is no power of legislation, independent of the people; no power that has an interest detached from that of the public; consequently there is no power existing against which it is necessary to guard. While our Legislatures therefore remain electiv, and the rulers have the same interest in the laws, as the subjects have, the rights of the people will be perfectly secure without any declaration in their favor.

But this is not the principal point. I undertake to prove that a standing Bill of Rights is absurd, because no constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare what they deem a privilege; but they have no right to say what the next generation shall deem a privilege. A state is a supreme corporate body that never dies. Its powers, when it acts for itself, are at all times equally extensiv; and it has the same right to repeal a law this year, as it had to make it the last. If therefore our posterity are bound by our constitutions, and can neither amend nor annul them, they are to all intents and purposes our slaves.

But it will be enquired, have we then no right to say, that trial by jury, the liberty of the press, the habeas corpus writ, and other invaluable privileges, shall never be infringed nor destroyed? By no means. We have the same right to say that lands shall descend in a particular mode to the heirs of the deceased proprietor, and that such a mode shall never be altered by future generations, as we have to pass a law that the trial by jury shall never be abridged. The right of Jury trial, which we deem invaluable, may in future cease to be a privilege; or other modes of trial more satisfactory to the people, may be devised. Such an event is neither impossible nor improbable. Have we then a right to say that our posterity shall not be judges of their own circumstances? The very attempt to make perpetual constitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia. Nay we have as little right to say that trial by jury shall be perpetual, as the English, in the reign of Edward the Confessor, had, to bind their posterity forever to decide causes by fiery Ordeal, or single combat. There are perhaps many laws and regulations, which from their consonance to the eternal rules of justice, will always be good and conformable to the sense of a nation. But most institutions in society, by reason of an unceasing change of circumstances, either become altogether improper, or require amendment; and every nation has at all times, the right of judging of its circumstances and determining on the propriety of changing its laws.

The English writers talk much of the omnipotence of Parliament; and yet they seem to entertain some scruples about their right to change particular parts of their constitution. I question much whether Parliament would not hesitate to change, on any occasion, an article of Magna Charta. Mr. Pitt, a few years ago, attempted to reform the mode of representation in Parliament. Immediately an uproar was raised against the measure, as unconstitutional. The representation of the kingdom, when first established, was doubtless equal and wise; but by the increase of some cities and boroughs, and the depopulation of others, it has become extremely unequal. In some boroughs there is scarcely an elector left to enjoy its privileges. If the nation feels no great inconvenience from this change of circumstances, under the old mode of representation, a reform is unnecessary. But if such a change has produced any national evils of magnitude enough to be felt, the present form of electing the Representativs of the nation, however constitutional, and venerable for its antiquity, may at any time be amended, if it should be the sense of Parliament. The expediency of the alteration must always be a matter of opinion; but all scruples as to the right of making it are totally groundless.

Magna Charta may be considered as a contract between two parties, the King and the Barons, and no contract can be altered but by the consent of both parties. But whenever any article of that deed or contract shall become inconvenient or oppressiv, the King, Lords and Commons may either amend or annul it at pleasure.

The same reasoning applies to each of the United States, and to the Federal Republic in general. But an important question will arise from the foregoing remarks, which must be the subject of another paper.

No. IV

 NEW YORK, 1788.

The important question I proposed to discuss in this number, is this: "Whether, in a free State, there ought to be any distinction between the powers of the people, or electors, and the powers of the Representativs in the Legislature." Or in other words, "whether the legislativ body is not, or ought not to be, a standing convention, invested with the whole power of their constituents."

In supporting the affirmativ of this question, I must face the opinions and prejudices of my countrymen; yet if we attend closely to the merits of the question, stripped of all its specious covering, we shall perhaps find more arguments in favor of the opinion, than we at first suspect.

In the first place, a Legislature must be the supreme power, whose decisions are laws binding upon the whole State. Unless the Legislature is the supreme power, and invested with all the authority of the State, its acts are not laws, obligatory upon the whole State.18 I am sensible that it is a favorite idea in this country, bandied about from one demagogue to another, that rulers are the servants of the people. So far as their business is laborious and embarrassing, it implies a degree of servitude; but in any other view, the opinion is totally false. The people ought at least to place their rulers, who are generally men of the first abilities and integrity, on a level with themselves; for that is an odd kind of government indeed, in which, servants govern their masters. The truth is, a Representativ, as an individual, is on a footing with other people; as a Representativ of a State, he is invested with a share of the sovereign authority, and is so far a governor of the people. In short, the collectiv body of the Representativs, is the collectiv sense and authority of the people; and so far are the members from being the servants of the people, that they are just as much masters, rulers, governors, whatever appellation we give them, as the people would be themselves in a convention of the whole State.

But in the second place, the public good or safety requires that the powers of a Legislature should be coextensiv with those of the people. That a Legislature should be competent to pass any law that the public safety and interest may require, is a position that no man will controvert. If therefore it can be proved that the reservation of any power in the hands of the people, may at times interfere with the power of the Legislature to consult the public interest, and prevent its exercise, it must be acknowleged, that such a reservation is not only impolitic, but unjust. That a Legislature should have unlimited power to do right, is unquestionable; but such a power they cannot have, unless they have all the power of the State; which implies an unlimited power to do wrong. For instance, suppose the constitution of any state to declare, that no standing army shall be kept up in time of peace; then the Legislature cannot raise and maintain a single soldier to guard our frontiers, without violating the constitution. To say that new enlistments every year will save the constitution, is idle; for if a body of troops raised for thirty years is a standing army, then a body raised for twenty years, or for six months, is a standing army; and the power to raise troops for a year, is a power to raise them at any time and maintain them forever; but with the addition of much trouble and a load of expense. Since therefore there never was, and probably never will be a time, till the millenium shall arrive, when troops will not be necessary to guard the frontiers of States, a clause in a constitution, restricting a Legislature from maintaining troops in time of peace, will unavoidably disable them from guarding the public interest. That a power to raise and equip troops at pleasure, may be abused, is certain; but that the public safety cannot be established without that power, is equally certain. The liberty of a people does not rest on any reservation of power in their hands paramount to their Legislature; it rests singly on this principle, a union of interests between the governors and governed. While a Legislator himself, his family and his property, are all liable to the consequences of the laws which he makes for the State, the rights of the people are as safe from the invasion of power, as they can be on this side heaven. This union of interest depends partly on the laws of property; but mostly on the freedom of election. The right of electing rulers is the people's prerogativ; and while this remains unabridged, it is a sufficient barrier to guard all their other rights. This prerogativ should be kept sacred; and if the people ever suffer any abridgment of this privilege, it must be their own folly and an irrecoverable loss.