RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution

Declaration of IndependenceThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Chapter III

Of the powers delegated to the General Government in the Federal Constitution. Containing in Division I. The Constitution of the United States; Division II. On the powers of Congress; Division III. On the power and duty of the President; Division IV. On the constitutional jurisdiction of the Supreme Court of the United States.

Before considering the very general and comprehensive subject of this chapter, it may repay the reader’s attention to examine, in a cursory manner, the constitution itself, in which all these powers are contained. For this reason, as well as because it may frequently be convenient to such as are desirous of consulting it, to know its precise phraseology, it was thought best to introduce it in this place, without abridgement or any other alteration, either of its language or arrangement.

Division I. Constitution of the United States.

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.


Section I. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Sec. Ii. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and, until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill up such vacancies.

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

Sec. iii. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, bean inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

The Senate shall choose their other officers and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

Judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.

Sec. Iv. The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators.

The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

Sec. V. Each House shall be the judge of the elections, returns, and qualifications of its own members; and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal.

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

Sec. Vi. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to or returning from the same ; and for any speech or debate in either House, they shall not be questioned in any other place.

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.

Sec. Vii. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objection at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Sec. Viii. The Congress shall have power—

To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States.

To borrow money on the credit of the United States.

To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

To provide for the punishment of counterfeiting the securities and current coin of the United States.

To establish post offices and post roads.

To promote the progress of science and useful arts, by se

curing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

To constitute tribunals inferior to the supreme court.

To define and punish piracies and felonies committed on the high seas, and offences against the law of nations.

To declare war; grant letters of marque and reprisal; and make rules concerning captures on land and water.

To raise and support armies. But no appropriation of money to that use shall be for a longer term than two years.

To provide and maintain a navy.

To make rules for the government and regulation of the land and naval forces.

To provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.

To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: and

To make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

Sec. Ix. The migration or importation of such persons, as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress, prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

No bill of attainder, or ex post facto law, shall be passed.

No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another: nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another.

No money shall be drawn from the treasury, but in consequence of appropriations made by law: and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

No title of nobility shall be granted by the United States. And no person, holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State.

Sec. x. No State shall enter into any treaty, 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 payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war, in time of peace, 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 will not admit of delay.


Sec. I. The Executive Power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as follows:

Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives, to which the State may be entitled in the Congress. But no Senator, or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one, at least, shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall in like manner choose the President. But, in choosing the President, the votes shall be taken by States, the representation from each State having one vote: a quorum for this purpose shall consist of a member or members from two thirds of the States; and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors, shall be the Vice-President. But if there should remain two or more, who have equal votes, the Senate shall choose from them, by ballot, the Vice-President.] See amendment XII.

The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President. Neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the VicePresident; and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President; and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished, during the period for which he shall have been elected; and he shall not receive, within that period, any other emolument from the United States, or any of them.

Before be enter on the execution of his office, he shall take the following oath or affirmation:

‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States; and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.’

Sec. Ii. The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices: and he shall have power to grant reprieves and pardons, for offences against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur: and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they shall think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen, during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

Sec. iii. He shall, from time to time, give to the Congress information of the state of the Union ; and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both Houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive Ambassadors and other public Ministers. He shall take care that the laws be faithfully executed; and shall commision all the officers of the United States.

Sec. It. The President, Vice President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.


Sec. I. The Judicial Power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time, ordain and establish. The Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Sec. Ii. The Judicial Power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the

United States, and treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers, and Consuls; 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 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, or the citizens thereof, and foreign States, citizens or subjects. See amendment XI.

In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury: and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Sec. in. Treason against the United States shall consist only in levying war against them, or in adhering to their ener mies, giving them aid and comfort. 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.

The Congress shall have power to declare the punishment of treason: but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.


Sec. I. Full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Sec . ii. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

No person, held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.

Sec . iii. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State—nor any State be formed by the junction of two or more States, or parts of States —without the consent of the Legislatures of the States concerned, as well as of the Congress.

The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States: and nothing in this Constitution shall be so construed, as to prejudice any claims of the United States, or of any particular State.

Sec. iv. The United States shall guarantee to every State in this Union a republican form of government; and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.

Article v.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures 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 part of this 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 the Congress; provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.


All debts contracted, and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States, under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land: and the Judges in every State shall be bound thereby; any thing in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all Executive and Judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.


The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.


I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation—and particularly describing the place to be searched, and the persons or things to be seized.

V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, 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: nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law: nor shall private property be taken for public use without just compensation.

VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved: and no fact, tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of common law.

VIII. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others, retained by the people.

X. 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.

XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

XII. 1. The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate: the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted: the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the Representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President.

2. The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President: a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

3. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States.

XIII. If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any Emperor, King, Prince, or Foreign Power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trustor profit under them, or either of them.

In giving a construction to the constitution, it should be remembered,

1. That the constitution is a compact made by the people of the United States, and not a compact made by the legislatures of the different states.

2. That the government of the United States can claim no powers which are not granted to it by the constitution, either expressly or by necessary implication.

3. That the words of the constitution are to be taken in their natural sense, without restriction or enlargement.

4. That, where the constitution contemplates and authorizes a certain object to be effected, all proper means, not expressly prohibited by the constitution, may be adopted to effect that object.

5. That, though the powers delegated by the constitution are limited in extent, yet they are supreme within their limits, in the exercise of them. That, consequently,

6. The constitution is the paramount law of the land, and cannot be altered by congress, or by any other political power, except in the mode pointed out in itself. See 2 Dal. 304.

Division II. On the powers of Congress.

Congress derives its existence and all its powers from the constitution. An act of congress, therefore, made contrary to any express restriction of the constitution, is absolutely void. 3 Dal. 399.

And, for the same reason, an act of congress, in enacting which there is an attempt to exercise powers, which are not given in the constitution, will be void. See 1 Cranch. 176.

Because the constitution is the only authority which they have, and beyond which they ought not to go. To prevent all doubts which might otherwise arise on this subject, it is declared in article tenth of the amendments to the constitution, that, ‘ the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ But a law may be void in part, so far as it is unconstitutional, and valid in other respects. See 3 Wash. 313.

Yet it is not considered necessary, that a power should be given in express terms, if it can be made out by necessary implication from an authority which is expressly granted. See 1 Wheat. 304, 330. 4 Wheat. 316.

And this is in conformity with what is familiarly called the sweeping clause in the constitutiou, viz.: Art. 1, sec. 8, by which congress are empowered ‘to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, (that is, the powers previously enumerated in the constitution) and all powers vested by this constitution in the government of the United States, or in any department or office thereof.’

With respect to the incidental or implied powers of congress, therefore, it seems, that where certain means are appropriate to carry into effect a certain power, and there is no prohibition to use them, and no particular means are pointed out by which it may be effected, congress have authority to juse such as are appropriate. So, where a certain duty is imposed on the government to do a certain act, and there is no restraint on any means in the constitution, they have authority to select the means at discretion. And for the same reason, where the end is within the intent of the constitution, all means which are plainly adapted to that end, and are not prohibited, may constitutionally be employed to that effect. See 4 Wheat. 316.

In any such case, if the means are appropriate, how far they are necessary for that purpose, under the ‘sweeping clause,’ is a question for the decision of congress, and not for the supreme court of the United States. Ibid.

It was therefore decided.that congress has power to incorporate a bank. Ibid.

Further; in construing the extent of the powers created by the constitution, it is held, that there is no other rule, than to consider its language in relation to the powers which it confers, in connexion with the purposes for which they were conferred. See 9 Wheat. 188. The reason assigned is, that the framers of the constitution must be understood to have employed words in their natural sense, and to have intended what they have said.

By article VI. of the constitution, treaties made agreeably to it, are also the supreme law of the land. It is obvious, however, that a treaty made contrary to the constitution will be void; because it would be absurd, if the treaty making power, which derives all” its authority from the constitution, could contravene the constitution itself. For the same reason, if a treaty were made, containing stipulations, or concessions, which the president and senate under the constitution, have no authority to make, it would be void; for instance, if they should attempt to cede part of the acknowledged territory of a state, without the consent of the people of that state in regular convention, it must be void, as not authorized by the constitution. And, it is believed, that the consent of the legislature of such state would not avail in any such case, unless specially authorized by the people to act on their behalf, in relation to this subject; because no such authority is conferred by their state constitution.

A treaty made subsequently to an act of congress, and incompatible with any of its provisions, would so far operate as a repeal of the act. The reason is, that the treaty making power is established by the constitution, and is supreme within its department; provided, only that it is not inconsistent with the constitution, nor requires the exercise of any power not granted in it. On the other hand, if an act of congress were enacted after a treaty, and inconsistent with it, though in any other respect not inconsistent with the constitution, though the inconsistency amounted to an intentional violation of the treaty; yet there does not appear to be any sufficient foundation for an exception to the validity of the law on this account. It is true, such a violation of the treaty might lead to a war; but it should be recollected, that congress has the power of declaring war, which is a far more decisive measure than infringing an article in a treaty. It is probable the courts would be governed in their construction of the law, in any such case, by the apparent intention of congress, whether the object was avowedly to infringe a treaty or not.

It is not within the limits of this work to examine minutely the precise extent of power probably intended to be bestowed on congress, in the enumeration of powers contained in section 8, of Article 1 of the constitution, some of which would singly require a volume for that purpose. It is the less necessary, because the concise expressions made use of in the constitution, to define these powers, are sufficiently clear for ordinary occasions, and professional gentlemen will be obliged of course to resort to the different series of original reports, the index aione to each of whichj makes a larger book than the present work. A few remarks on some of them must suffice.

Under section 8 of the constitution, congress is authorized to lay and collect taxes, &c.; but they must be uniform throughout the United States. A restriction is laid upon this general power, in section 6, ‘that no capitation or direct tax shall be laid, unless in proportion to the census, &c. It seems, agreeably to the construction, that has been given to this clause in section 9, that the only taxes which it is necessary to apportion among the states, whenever congress shall see fit to lay them, are the land tax and the poll tax, no others being considered as direct taxes, within the intent of the constitution; and, consequently, all other taxes which congress may impose, agreeably to the constitution, must be laid uniformly. See 3 Dal. 171.

This power to tax is co-extensive with the territory of the United States, and congress has no power to exempt any state from its due share of the burthen of taxation. See 5 Wheat. 317.

However, it is held, that congress is not bound to extend a direct tax to the District of Columbia, or to the territories, though they may do so at discretion. See ibid.

A question may here be raised, whether, under the first clause of section 8, just referred to, congress has any right to impose taxes, except for the purpose of raising a revenue. The whole clause reads thus: ‘The congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States: but all duties, imposts, and excises, shall be uniform throughout the United States.’ In order to discover the true interpretation of this clause, it may afford some assistance, so far as the present question is concerned, to take it in connexion with the two next, which authorize congress ‘to borrow money on the credit of the United States,’ and ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’

In the construction of the first clause alone, a question may be raised, whether that part of the clause ‘to pay the debts, and provide for the common defence and general welfare,’ is to be taken as a distinct authority from that of laying taxes, or, whether it is to be taken as expressing the purposes for which alone congress have the power of taxation. If the former construction were the true one, then congress would have an unlimited discretionary power of taxation. This power, however, it is believed, the states in adopting the constitution, never intended to confer on congress. It will be recollected, that, at the close of the war of the revolution, which was a long and severe struggle, and during which, the country had suffered much from the inefficiency of the articles of confederation, the states were oppressed with a heavy public debt* which congress, under the confederation, was wholly incapable of discharging. That, consequently, a regard for the safety of the states, in Case of another war; the wish to pay the public debt, and thus redeem the suffering credit of the states; and, in general, to provide for the public welfare, by a closer union of the states; were some of the principal motives for adopting the present constitution. It will be remembered, that the power of taxation created one of the greatest obstacles to the adoption of the present constitution; and, it is probable that some of the states would never have ratified it, if they had considered the constitution as bestowing on congress an unlimited power of taxation. What then are to be the limits to this power? The answer must be that congress has no constitutional power to impose taxes, except in three cases, viz.: 1, to pay the public debt; 2, to provide for the common defence; 3, to provide for the general welfare.

With regard to the exercise of this power in the two first cases, there can but little doubt arise; since here the national honor, as well as the national safety, is concerned. But, with regard to the third, it may be asked, who shall determine, in any case, when the public welfare or interest may be advanced by the expenditure of money; and consequently, though neither the public debt nor the public safety is concerned, it will be expedient for the public to raise money by taxation. Certainly there can be but one answer to this question, viz.: that congress has the right to determine at discretion, whether it will advance the public interest to raise money in this way. For, this power of raising money is merely ancillary to an appropriation of it. Since, if congress think that the appropriation of a sum of money will contribute to the general welfare, they may use their discretion to raise it accordingly. And why should there be a distinction between such a power, and all others, in this respect? Must not the persons entrusted with the power, be considered as having the exercise of it left to their discretion? It is certainly left to their discretion, not to impose any taxes, unless they think it expedient; then, why is not the power, to impose taxes when they think it expedient for the general welfare, also left at their discretion?

If it should be asked, what is meant in the constitution by the words ‘ general welfare,’ it may be answered, that, whatever contributes to advance the true interests of the country, may be considered as conducing to its welfare, and so far will come within the meaning of the words in the constitution. But here, the word ‘general’ is the emphatic word, and not ‘welfare.’ For, when the constitution was first adopted, it cannot reasonably be supposed, that the states adopting it, would have been willing that monies should be raised among them by a general tax, to be appropriated and expended to obtain any benefit merely partial; that is, for the advantage of some one or more particular states, while the others, though they paid their proportions of the taxes, derived no advantage from the expenditures. On this account, the states stipulate in the constitution or national compact, that congress shall have power to impose taxes, he. to provide for the general welfare, and for the same reason very naturally require, that all duties, &x. shall be uniform throughout the United States.

As it would be unconstitutional, therefore, to lay an unequal tax, as well as an act of oppression to those who were compelled to pay the larger proportion of it; so it would also be unconstitutional to expend the money collected by it, with a view to give some peculiar advantage to some one or more of the states, only, as well as oppressive to those who bore their share of the burthen, while others reaped all the benefit. It is not to be supposed, however, that it is practicable to preserve a perfect equality, or a precise proportion in any such case, between the burthens and benefits which fall to the share of the states, respectively. But, as a principle or standard of right, this equality or just proportion should never be lost sight of for a moment, in any public measures whatever.

Further; whether it is necessary or not, to impose a certain tax in order to provide for the public welfare, belongs to congress alone to determine, and for two reasons; I, Because this restriction is given in the constitution in order to furnish congress with a rule, by which to decide in what cases to impose taxes, according to the intention of the parties to that compact. This is a sacred trust confided to the presumed integrity and justice of congress, and which, it would seem, they could hardly violate without being conscious of it; 2, Because no other persons are entrusted by the constitution with the important office of determining whether a tax is necessary for the general welfare or not. The supreme court of the United States has no jurisdiction to determine this question, which is one of political expediency alone. But, if it should once be made to appear, that such taxes are not conducive to the general welfare; as if the purpose for which they are imposed, is expressly declared in the act which imposes them, and the appropriation as there made, it is self-evident, is to effect some object of a partial nature, perhaps it may be assumed that the supreme court might well decide, that the tax does not conduce to the general welfare, and therefore that congress has no authority under the constitution to impose it. To illustrate; suppose congress should enact a law imposing a new tax, and should appropriate the money to be collected by it, to build a new state house in Connecticut, or any other state; can any one doubt that this law would be unconstitutional, and that the supreme court of the United States would decide that it was void? And yet, if no unconstitutional appropriation should appear on the face of the Act, the court could hardly have any jurisdiction of the subject, in this respect.

A similar restriction must be implied, upon the power which is given in the second clause ‘to borrow money on the credit of the United States,’ though there is no express qualification annexed to the exercise of this power. Because it cannot be supposed, that is was intended by the constitution to give congress a power to do that indirectly, which they have no constitutional power to do directly. For, if this restriction is not extended as well to the power of raising money by borrowing, as to that of raising it by imposing taxes, congress will have the power of borrowing money on the credit of the United States for whatever objects they choose; and, having in this way created a public debt, may then exercise the power of taxation for the purpose of raising money to discharge it; though the objects for which the debt was created at first, were such as the constitution never contemplated, as furnishing an occasion for raising money by taxation. But this is too irrational to be admitted, and therefore congress can have no power to borrow money on the credit of the United States, for any other purposes than to pay the public debt, and provide for the common safety and general welfare of the United States.

It may be remarked here, transiently, that the right of expending the public money, must necessarily be limited to those objects, for which alone congress is authorized to raise it. For, if congress have no authority to raise money by the imposition of taxes, or by borrowing, except to answer the necessary purposes before mentioned, it must follow, that congress can appropriate the public money to no other purposes; unless we can suppose the absurdity, that though congress have the power to raise money for a constitutional purpose only, yet, as soon as it is collected, they may apply it to one for which they could not constitutionally have raised it.

It follows, that congress has no right, under the constitution, to appropriate money, except for general purposes, that is, purposes that conduce to the general benefit of all the states. Equality of benefit to all, should also be observed here, if practicable, though it is not of so much consequence as it is that the public burthens should be borne equally, or rather proportionally. For, as long as each state derives a benefit from a public measure, greater than the burthen, which it sustains by paying its proportion of the money expended to effect it, there will be no ground of complaint, though one state, owing to some natural or accidental advantages, should derive ten times as great a benefit from it as the rest. But, where one state bears a heavy burthen in consequence of some public measure, and derives no advantage from it sufficient to compensate for that burthen, while another state derives a very great advantage from it, but bears no greater burthen, perhaps a much lighter one, there is sufficient cause for complaint on account of the inequality, which, it is apparent, could never have been in the contemplation of the states when the constitution was adopted.

It follows from the same train of reasoning, that congress has no authority, under the constitution, to appropriate money to make internal improvements in any case, where the advantage of them is to be derived by one or more particular states only. For, such internal improvements, in the territory of any particular states, should be made by the states themselves, at their own expense. The other states have nothing to do with them; and, by the compact which they have made in the constitution, they never entrusted congress with any power to appropriate money in this way. If, however, an internal improvement in any particular state, will be of service also to the interests of the United States, there should be a comparative estimate made of the particular interest of the state, and of the general interest of the United States; and the expense of making the improvement should be defrayed in just proportions out of the state treasury and that of the United States. If the state will not consent to such an arrangement, then congress will proceed no further than the general interests require.

A more convenient arrangement in this respect, it is believed, would be, for congress to make an annual appropriation of a certain sum of money, more or less, according to circumstances, to be paid over to the state treasuries, according to the ratio of the apportionment of direct taxes, or representatives to congress, and to be disposed of either in internal improvements in the states respectively, or to such uses as the state legislatures should direct. Either of these two modes of making internal improvements would be constitutional and equitable; but, it is believed, that to expend money in internal improvements for the benefit of certain states only, to which they make no proportional contribution, is within none of the powers of congress, and is equally unconstitutional and inequitable.

But, it may be objected here, if this be so, whence does congress derive authority to expend money in the erection of fortifications on the sea-coast of the commercial states, when the benefit of them is principally derived by those states only. The answer is, that one of the principal motives which the states had for forming the union, was to insure the safety of all of them without distinction. It is the duty of the general government, and they have ample power in the constitution, to protect any state that happens to be in danger at any time, from foreign aggression, at any expense, however great to the union, and though the others may be perfectly safe. The advantage here is mutual, because it is altogether uncertain, which state may first need the assistance of the United States. In the early settlement of some of the inland states, since the adoption of the constitution, fortresses and blockhouses, and military posts and stations were erected and maintained by congress, in performance of their duty of defending the settlers, some of which are still kept up, though the task of maintaining them is daily growing less and less necessary. And, for the same reason, if a danger should hereafter arise to any of them from any new enemy, it will equally become the duty of congress to protect them out of the public treasury, at whatever cost. And, if by taking any particular measure of precaution or prevention, the danger may be avoided, or, if it should come, may be more easily repelled, it is within the constitutional discretion of congress to adopt such measures in advance. As therefore congress is bound to protect all the states equally, and as the commercial states on the sea-coast, will be secured or defended from attack much more effectually, by erecting fortifications along their shores and in their harbors, it will not only be a justifiable expenditure of the public money under the constitution, but perhaps the most economical mode of securing the safety of those states, that can be adopted.

The erection of light-houses and the building of ships of war, are justified on a different ground. The first is to secure the shipping from the dangers of the coast, and the latter to protect them from enemies; and, as it is well known that the commerce which is carried on by means of merchant vessels, is advantageous, not only to the exporting and importing states, but likewise to those who consume foreign commodities, and those who raise produce, or manufacture goods for exportation, the security and protection of it concern the general welfare.

The third clause above referred to, authorizes congress to regulate commerce, &.c.; and it may be asked, Has congress any authority, under it, to impose duties on imports? To answer this question, the true meaning of the parties to the constitution should be considered, without resorting to any refined or artificial construction. For this purpose, it will be necessary to know what is meant by regulating trade, and whether it is ever necessary for the mere regulation of trade, to lay a tax on imports, and if so, whether such a measure was at all in the contemplation of the states, when they authorized congress to regulate trade.

The doctrine on this subject is very fully examined in Smith v. Ogden; and it seems that the power to regulate commerce, includes also the power to regulate navigation. It extends also to every species of commercial intercourse between the United States and foreign states, and among the several states of the union; but does not comprehend the commerce between individuals in the same state. This power may be executed to its utmost extent, as far as it is granted by the constitution. It does not comprehend the power of laying duties or imposts, on exports or imports, which is one of the branches of the taxing power; but it extends equally to every species of vessels, however propelled, or however employed. 9 Wheat. 209.

It will immediately occur to an attentive reader, that the constitution, in the first clause referred to, having given authority to congress to impose taxes and duties for certain specified purposes, requiring that they should be uniform ; and, in the second clause, having authorized congress to borrow money on the credit of the United States ; the subject of taxation, or raising money was wholly dismissed from their minds. It would seem probable, therefore, in framing the next clause, which gives power to congress to regulate commerce, the thought of doing it by means of imposts and duties never occurred to them. If, then, there are any other measures, which congress can naturally adopt for the regulation of trade, without resorting to imposts and duties, those measures probably are what the framers of the constitution had particularly in view in this clause.

It should be remarked here, that the whole clause authorizes congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Now, it is expressly forbidden in the fifth clause of section ix. to lay any tax or duty on articles exported from any state, &c.; it is clear, therefore, that, though congress has the power to regulate commerce, to do it by the imposition of duties or taxes, is not what was intended by the constitution. But, it may be said here, that the imposition of duties is forbidden on exports; it follows, that it was not intended by the constitution, to present the imposition of duties on imports. The answer to this objection, which is merely captious, is, that congress has the general power of laying taxes and duties by the first clause of section viii. above referred to, and which has just been examined; and, by the fifth clause of section ix, an exception is made, that no tax or duty shall be laid on exports. The general power of taxation, it has been attempted to show, is restrained to the payment of the public debt, and providing for the common defence and general welfare. This does not authorize the laying of any tax or duty on imports for the regulation of trade. And a power to regulate trade does not imply any right to impose taxes or duties on imports, if trade is susceptible of regulation without it; and as exportation, and the trade among the states can be regulated without it, there is obviously no necessity for implying a power to tax imports, which are introduced by foreign trade, from a power to regulate trade. Still, if it should be necessary to impose a duty on imports, for the advantageous regulation of trade, it cannot be denied that congress has the power to do it. But, then they will do it under the power to lay taxes and duties to provide for the general interest; and it must be subject to the restrictions before mentioned, of not consulting local, sectional, or partial interests only.

Further; as the protection and encouragement of trade and commerce, were subjects of the highest interest and importance to most if not all of the states which first joined in the adoption of the constitution, it cannot be supposed, that by giving congress a power to regulate trade, they meant any thing else than a power to adopt such measures, as they should think best calculated to advance and increase it. Can it be imagined then that, under such a power of regulating trade, congress has a constitutional authority to adopt measures injurious to it, for the purpose of advancing some other interest? Certainly not. If so, then it is quite clear that congress, under the power of regulating trade, has no constitutional authority to lay a duty Ob imports, for the mere purpose of encouraging manufactures; though, if it can be made to appear, that by the imposition of such taxes or duties, trade or commerce will be advanced, it cannot be doubted that congress has such power; and this is a subject that the constitution submits to their discretion.

It remains then to consider, whether, if the general welfare of the states will be promoted by taxing imports, congress has not the power, under these clauses in the constitution, to lay such taxes, even though they may be unfavorable to the interests of trade.

It may be remarked here, that in giving a construction to the constitution, what the states really intended, should be the guide ; and the words used in the constitution should always be taken, not independently and by a strict construction, but with a reference to such intention. However advantageous, therefore, it may be for the interests of the United States, that a certain power should be given to congress, if such power does not appear to be given in the constitution, or, if it may possibly be considered as coming within the comprehensive range of a very general expression, in all probability could never have been in the contemplation of the states to bestow on congress, it cannot be sustained by, or implied from mere considerations of political expediency.

In adopting the constitution, each state must be considered as having acted on its own judgment with regard to the powers, which it was willing to join in confiding to congress. Though a certain power, therefore, may have been considered very proper to be granted to congress by one or more states, yet some particular state may have thought otherwise, and therefore may have refused to confer it. In any such case, to endeavor to make use of general words, in their most comprehensive sense, in order to prove that a certain power is given by them to congress, which such state never contemplated, would be a dishonorable attempt to make the constitution a catching bargain. But there never can be any necessity for resorting to so degrading an expedient. For, if it will be advantageous to the common interest of the United States, that congress should have a certain power, and it is doubtful whether it is granted to them by the constitution, it would be far better to propose an amendment to the constitution, for the purpose of removing the doubt, and either grant or deny the power expressly, than by an artificial or subtle construction of the constitution, usurp a power not distinctly granted by it, to the great dissatisfaction of the dissentients. But, it may be objected perhaps, that by a fair interpretation, the power may be considered as given by implication, or, that it is given according to the literal sense of the words; and, if it is submitted as an amendment to the constitution, it may be impracticable to convince a sufficient number of those who have the power to make amendmepts, to render it effectual as such. The answer is, if the grant of the power to congress is at all doubtful, and the expediency of it is so uncertain, that a sufficient majority cannot now be obtained to insert it as an amendment to the constitution, it will be better to consider it as not granted, than to exercise it against the opinion of so many dissentients, as to its constitutionality, as well as to its policy.

In answer then to the proposed inquiry, it may be observed, that congress undoubtedly has a power to impose taxes, imposts and duties, &c. on imports, in three cases, and in those only, viz.: 1, to pay the national debt; 2, to provide for the common defence ;. 3, to provide for the general welfare. But what was the intended operation of this power to impose duties, &c? It seems clear, that it was to raise money, which was afterwards to be appropriated and expended in obtaining one or more of these objects. Because the duties are to be imposed, 1, to pay the public debt, which cannot be done without collecting and appropriating money; 2, to provide for the common defence, which can only be done by appropriating the money collected from the duties, to the pay of the army or navy, which congress is authorized by the constitution to raise, or maintain, &c. &c. ; 3, to provide for the general welfare, viz.; by the appropriation of the money collected from the duties, to defray the expense of any measures of general expediency.

The injury done to the trade of the country by laying heavy duties in order to pay the public debt, in the first case, or, in order to provide for the public safety, in the second, must be borne, if necessary, as a concession made to justice, or a sacrifice to necessity. But, if the tax or duty is imposed to provide for the general welfare, a distinction should be taken. For, if the sacrifice made in the loss of trade, is general to all the states, and the benefit derived from the sacrifice is likewise general, then the whole becomes a question of political expediency, for the decision of congress, whether trade shall thus be burthened with taxes, in order that the money raised by them should be expended in promoting such measures or not.

But, if one state alone is to suffer in its trade, yet derive little or no advantage from such measures, while the other states, without suffering any material disadvantage in their commerce, are to derive the whole advantage of such measures, this will be wholly contrary to the true intention of the parties to the constitution, as well as taking a very unfair and dishonorable advantage of the state thus oppressed.

There is nothing at all refined in this doctrine, since it is grounded on plain principles of justice and honesty, which every man of integrity would blush to transgress in the common transactions of private life, and which ought not to be disregarded or overstepped by statesmen and politicians, however high their stations and offices, and however great their popularity.

The application of this doctrine is easy. Congress has no constitutional power, under the three first clauses in Article 1, section viii. to impose taxes or duties of any kind, except for the purposes of revenue. Because, though such a power may seem, at first sight, to come within the very general words of the constitution, yet their sense must be restricted to what was the real intention of the states, at the time of its adoption.

It remains to consider the final question, whether any part of the constitution gives congress a power, either expressly or by necessary implication, to impose a duty on imports, for the acknowledged purpose alone, of encouraging domestic manufactures.

Any person consulting the constitution for the purpose of ascertaining whether such a power is given in it to congress, would very naturally turn to those places in it where taxes, duties, and the regulation of trade are mentioned; and, if he could not find any such power granted to congress, either in express terms, or by necessary implication, he would be very apt to give over farther examination, and conclude that no such power is delegated by it. But, in all probability, the true reason why nothing can be found in the constitution in relation to such a power in express terms, is, because at that time, manufactures were so little advanced in this country, that the encouragement of them was not much considered, in comparison with the important objects particularly contemplated in its adoption. For, it was not until Hamilton drew up his report on manufactures, that the subject attracted the public attention in this country, which it deserved.

The country at that time being in debt, and it being necessary to raise money to pay it, as well as for other purposes, the constitutionality of which was never doubted; and the least burthensome way of raising the money being by the imposition of duties on imports, the sole question was, upon what articles it would be the best policy to lay duties. The present constitutional question, whether congress has a right to lay duties for the mere purpose of encouraging manufactures, was not much thought of; because, as the payment of the public debt was a sufficient constitutional ground for the imposition of duties, it was unnecessary to look for another. According to the policy recommended by that distinguished politician, but, which whether wise or unwise, has long prevailed in commercial and manufacturing countries, the duties ought to be laid on such articles of foreign growth or manufacture, as interfere in our own market with similar articles of home production. The reason is, because if this were not done, foreign growers and manufacturers, owing to the greater cheapness of labor in ojd countries, and greater capital, superior skill and experience, and perhaps other causes, which it is not material to consider here, would be able to undersell us in our own market, and the consequence of which would be, that our own countrymen would be discouraged from manufacturing, &ec.; because the low price at which they weuld be compelled to sell, would prevent their receiving reasonable wages for their labor.

Where therefore congress have the constitutional power to lay imposts, the money arising from them being necessary to pay the public debt, or for other constitutional purposes, such considerations of public policy, are properly allowed to designate the articles upon which the duties should be laid. But where there is no such foundation, the money not being wanted for any constitutional purpose, there is no room for the question of policy, until some other constitutional occasion, if there be any such, occurs for the exercise of this power. In relation to the present subject, therefore, no conclusive inference can be drawn from the recommendations of Hamilton, whatever weight may be due to his opinion. The following considerations may perhaps afford some assistance in determining this point.

The constitution was adopted to promote the general welfare of all the states. But, though this is self-evident, no power is given to congress in express terms, to provide for the general welfare, except in the single case of laying taxes, k.c. ‘to provide’ ‘for the general welfare.’ Yet, this is either immediately or remotely the sole object of every power enumerated in Article I. section 8. But, as the states were apprehensive that congress might either usurp powers not granted to them, or misuse those that were, certain powers are expressly denied to congress, and the exercise of some of those which are granted, is restricted to certain cases.

Here then two different constructions may be given to the constitution. 1. As the sole object of the formation of the union, was to provide for the general welfare of the states, it may be considered that congress have the power to adopt any measures whatever for that purpose, which they may think expedient, with the exception of such as involve the exercise of powers, expressly forbidden either wholly, or in certain cases only which are specified. If this principle of construction should be adopted, it will follow, that the enumeration of the powers expressly conferred on congress in section 8, of Article I. will have no other operation than to state in express terms, what would have been understood without them, on a fair construction of a mere power to provide for the general welfare. It will be necessary then to suppose, that this enumeration was made merely for the purpose of preventing all doubt, as to the most important of the powers, as far as the states could agree on the subject. It will be necessary, also, as these express powers alone are inadequate to the contemplated object, to imply or infer, not only all the powers which are necessary to carry the expressed powers into execution, for this the constitution grants in the sweeping clause, but also, all such powers as shall be necessary to promote the principal object of the union, viz.: the general welfare, with the exception of those powers and acts only, which are expressly prohibited in the constitution.

Under this construction, the principal question might be settled at once without difficulty. For, then, under this general power to promote the general welfare of the United States, if it were expedient to lay a duty on imports for the mere purpose of encouraging domestic manufactures, congress might constitutionally do it, because it is not forbidden in the constitution in express terms. In such case, the policy of the measure, the articles on which the duties should be imposed, the amount of the duties, and the duration of the act imposing them, would all be equally at the discretion of congress.

This construction, however, would be liable to the objection, that the constitution, after enumerating certain powers, provides that all powers not given in it to congress, are reserved to the states or the people. From this reservation, those powers are excepted which are necessary to the exercise of those which are expressly given. And therefore if this reservation has any operation at all, it must apply to all powers which are neither expressly granted in the constitution, nor necessary to the exercise of those which are so. It is true, certain powers are forbidden to congress; yet, as it was not supposed that the enumeration of denied powers was so complete, that congress might constitutionally exercise any powers not enumerated and forbidden, this reservation of powers not granted was made in express terms.

Now, it is apparent, if congress have the power to adopt measures of every kind whatever which they think expedient for the general welfare, with the exception of such only as are expressly forbidden, or depend upon the exercise of powers which are so, then the express geueral reservation of all powers not’granted, becomes wholly inoperative. Since, notwithstanding this reservation, congress will have authority to exercise any powers and do any acts, not expressly forbidden, if they should consider them conducive to the general welfare.

The other construction is grounded on the supposition, that the states being jealous of their rights and interests, and consequently desirous of guarding against the possibility of any usurpation of powers by congress, having expressed the general objects of the union in the preamble to the constitution, as a limitation of the purposes for which the powers delegated in it are to be employed, have made an enumeration of all the powers which they were willing to entrust to congress, and after having expressly forbidden the exercise of some of those powers in certain cases, and also having expressly denied certain other powers in any case, in order that there might remain no doubt at all on the subject, have finally made an express reservation of all powers not granted to congress in the constitution. The effect of this last principle of construction will be, that congress, for the general purpose of providing for the general welfare, can exercise no other powers, than those which are granted in the constitution in express terms, and such others as are so necessary to the exercise of them, that the latter, the express powers, cannot effectually be exercised without the former, the implied powers. Under this latter construction, the power of imposing duties on imports, for the sole purpose of encouraging domestic manufactures, is not authorized by the constitution. But, perhaps the reader will come to the conclusion, that, with regard to some few particulars, the decision of which, at the time of adopting the constitution, was a matter of no immediate necessity, and which, if stated in express terms, would never have received the sanction of all the states, the constitution is not so much an exemplification of a compact, in which all those who adopted it, actually agreed, as it is a form of words, expressing clearly all that was agreed, but leaving matters which they could not agree upon, couched under a veil of general words, with a reservation as to their construction. But the whole subject is submitted to the discerning reader.

Division III.
Of the Powers and Duties of the President.

The executive power of the United States, by the constitution is vested in the President. It belongs to his department therefore to execute every law, which congress have authority to make under the constitution. 9 Wheat. 733. But, if the President should mistake the construction of an act of Congress, and in consequence of it, should give instructions not warranted by the act, any aggrieved party might recover damages against the officer acting under those instructions, which though given by the President, would furnish no justification or excuse. See 2 Cranch, 119.

For the same reason, the President cannot alter the effect or operation of a law by his proclamation. But, in general, it would seem, that where a particular duty devolves on the President, but, the means to be used in the discharge of it are not pointed out, he may adopt those which are most proper for that purpose, provided they are not repugnant to the constitution, and are not forbidden by any act of congress.

It is held accordingly, that, in time of war, the President has a right to use all the customary means to carry it into effect. 1 Gal. 563.

It may be remarked here transiently, that the President, in all cases, where his official authority and duty are not brought in question, is merely a private citizen, and is bound by all the ordinary duties and obligations of one. Accordingly, it has been held that, if his testimony is necessary in any case, for the purposes of justice, he may be subpcened into court as a witness, and may be required to produce papers, if regularly notified, in the same manner as an) other individual. However, it is quite clear, that the President can generally be under no obligation to divulge or disclose any part of any documents or affairs, which the public interest requires should be’ concealed. See I Burr’s Trial, 183.

Under the constitution. (article ii. section 2) the President has a power to nominate, and by and with the consent of the Senate, appoint certain officers of high standing and great responsibility. In the same section power is given to congress, to vest the appointment of such inferior officers, as they shall think proper, either in the President alone, the courts of law, or, in the heads of departments. Congress has exercised this authority by the creation of such offices as the public occasions require, the appointments to which have been distributed accordingly.

Under the power given by the constitution to nominate and by and with the consent of the Senate, &c. it is held, that the act of nomination is entirely discretionary with the President. He may therefore nominate whom he pleases. But, unless sanctioned by the consent of the Senate, the nomination will be wholly ineffectual. But if the Senate agrees to the nomination, the appointment becomes complete; and it becomes the duty of the president to give the officer a commission. This he cannot legally refuse to do, because the constitution requires the President to commission all officers of the United States. If so, it would seem, that if the President should make a nomination to the Senate, and they should concur, he will afterwards have no right to recall his nomination without their consent.

Where the President appoints an officer, who is not removable at his discretion, the officer may demand his commission, because the appointment confers legal rights upon him, which cannot he resumed. If therefore the commission has been been made out and signed by the President, the officer will be entitled to a mandamus to the secretary of state, requiring him to deliver to the officer, his commission or a copy of it from the record, which is made by law of equal efficacy. See 1 Cranch, 137, 155.

Though the commission is conclusive evidence of the appointment, and it usually is impossible to show the appointment otherwise than by proving the existence of the commission: still, there are cases, where the appointment is plainly complete, before any commission is issued; for example, where the courts or heads of departments have authority to appoint officers, who must have their commissions from the President. 1 Cranch, 137, 155.

Where the President is intrusted by the constitution with a discretionary power, his acts in the exercise of it are not subjected to the examination of the Supreme Court of the United States. But, if a specific duty is assigned to him by law, and the rights of individuals, depend on the performance of that duty, if the President should refuse to perform it, any individual injured by the refusal, has a right to resort to the laws of his country for a remedy. See 1 Cranch, 155.

The heads of departments for the same reason, where they act merely as the organs of the President’s will, in the exercise of his legal or constitutional discretion, are, in like manner, exempt from the control of the judiciary. But, where either of them refuses to perform a particular duty assigned to him by law, and which the President has no right to forbid, (whether he actually forbids it or not) as to record a patent for land, or a commission, &c. the courts of the United States are bound to afford redress, precisely as if those duties were to be performed by any individual, who was not one of the heads of department.

It is the duty of the President to cause all constitutional laws to be enforced, and there does not appear to be any pretence of constitutional right on his part, to decline the performance of any duty assigned to him by an act of Congress, on the ground that such law is unconstitutional. The question of the constitutionality of a law, is no where submitted to him by the constitution. Such question belongs to the Supreme Court of the United States alone, and his single opinion would be a very insufficient counterpoise to the wisdom of the two houses of congress. It is true, the constitution gives him a qualified Veto on all bills which have passed both houses of congress, so far as to require, in case of his disapprobation, a majority of two thirds of each house, &c. to constitute such bill a law. But, after a law is once constitutionally passed, with or without his approbation, if he may refuse to perform the duty of putting such law in execution, he will obviously have an absolute Veto on all laws, which may call for his assistance to enforce them. This Veto is not contemplated in the constitution. If therefore a law should be unconstitutional, he incurs no responsibility by putting it in force, until the Supreme Court decide it to be so. It is very desirable, however, that any person, who considers a law to be unconstitutional, and who will suffer an injury by its being put in execution, and especially if such injury will be irreparable, should have a right to apply to some proper tribunal for process to suspend the execution of it, until the question of constitutionality can be finally settled.

And here it may not be amiss to consider what remedy is provided by the constitution, in case the President should be guilty of any official misconduct. By Article II. Sect. 4, the President, &x. &c. is made liable to impeachment for treason, bribery and other high crimes and misdemeanors. It will be unnecessary in this place to make any comments on treason and bribery and other high crimes, but in relation to misdemeanors in office, it may very properly be asked in what they can consist, as contradistinguished from the three former charges. To answer this question clearly, will be rendered more easy, by considering in what respects the President may violate his official duty. This, it is apparent, may take place in three ways, viz.; 1. By refusing to execute the laws and treaties of the United States. 2. By usurping a power not confided to him by the constitution; though in some cases, this may amount to treason. 3. By an arbitrary and corrupt use of an authority lawful in itself, but which was intended to be exercised with a single view to the public good, to answer the purposes of selfish intrigue. In England, the King is not constitutionally answerable for any of his official conduct; but, as it is presumed, that he always acts by the advice of his ministers, they are held personally responsible for all political measures adopted during their administration. Some of them have suffered capitally for such alleged misconduct. It is on this account, in part, that ministers send in their resignation as soon as they find that the majority of parliament is against them. But, in the United States, the President is answerable for his own official conduct; and is liable to impeachment for any default in the discharge of his duty.

But, though the constitution contemplates the possibility of the President’s being impeached, yet from the adoption of the constitution to the present time, no such impeachment has ever been moved for; and unless unfitness, or incapacity or a neglect of duty, is to be considered as a ground for impeachment, perhaps never will be. For, the President’s authority seems so distinctly marked out in the constitution, and he is so hemmed in by the barriers of superior as well as co-ordinate authorities, that there are but few cases, where he would be able to usurp authority without its being felt by some of the other branches of the government, which would hardly fail indignantly to repel the encroachment. If the President should’ be so indiscreet as to command an unconstitutional or illegal act to be done, it would be no excuse or justification to the officer who executed it.

It would hardly seem to afford sufficient foundation for an impeachment, if the President should make use of the discretion, which is intrusted to him by the constitution or the laws of the United States, imprudently and injudiciously. For, in any such case, the people must be content with the honest exercise of such ability, as they see fit to elevate to this high office. But, they have a right to expect integrity and fair purposes and intentions. And, therefore, if the President should pervert the powers, confided to him by the constitution, to be exercised for the promotion of the general welfare, to the purposes of favoritism, partial or local interests, political intrigue or the mere confirmation or advancement of his own authority, he would well deserve to be impeached. Because, in this way, he sacrifices the general interests of the nation, to the purpose of buying over and corrupting a party or faction. From the imperfection of humanity, a mere error of judgment, a casual omission of duty, not persisted in against conviction, ought in no case whatever, however unfortunate the consequences, to be the subject of an impeachment; but a deliberate refusal, either to execute a law, to observe or enforce the observance of a treaty, or to abide by and if officially called on, put in execution a decree of the Supreme Court of the United States, would perhaps be as gross a violation of the President’s duty, as, considering the very limited extent of his power, can well be imagined. For, by refusing to execute a law, he usurps to himself the authority of putting an unqualified Veto upon the acts of the national legislature. He also assumes a dispensing power as to the discharge of his own duty; as, if he had a discretion whether to perform it or not, and constitutes himself a judicial officer, to judge of the constitutionality of a law, when his office is merely ministerial, to execute it. For, by the constitution, whatever laws Congress see fit to enact, it is his duty to execute. To neglect it wilfully, is an assumption of authority, a denial of the wisdom of the general legislature, and a contempt of their authority. And in all cases where his assistance is required to execute the laws, if he withholds it, the laws virtually become so far annulled, and Congress is deprived of the power of legislation. For, of what avail are laws which are not enforced?

The same remark applies to treaties. Under the constitution, the President has no discretion in relation to the observance and enforcement of them. The constitution requires, that he should execute the laws; it also makes treaties, he. the supreme law of the land. Treaties consequently are laws, which he must execute, and this can be done in no other way, than enforcing their observance. The assumption of a dispensing power, in this case, may be attended with worse conquences than a refusal to execute a law of congress. For, a refusal to execute or observe a treaty, made with a powerful nation, may be the means of involving the country in a ruinous war, the consequence of which possibly might be the dissolution of the Union, by the dismemberment or the separation of the states.

If he should in like manner refuse to observe a treaty made with a nation or tribe of men, too inconsiderable to be able to redress its own wrongs, he may be the means of stamping on the national character a mark of dishonor, which, after the wrong is once done, and consequently has become irremediable, no lapse of time will ever be able to efface; but which will remain a source of regret and mortification to future generations, as a proof of the breach of faith of their ancestors. Further, would there not be just reason to apprehend, that, it might bring upon the whole nation, if they should sanction such an act in their ruler, the punishment of the oppressor, the curse of those who remove their neighbor’s landmark, the judgment upon those who unrighteously ‘slay and afterwards take possession?’ See 1 Kings, chap xxi.

The wilful perversion of a legitimate authority, however difficult it might be to establish it by proof, would also be a misdemeanor. Let it be supposed, for example, that there is a vacancy in a public office, of which the appointment is vested in the President, provided it be done by and with the advice and consent of the senate, if in session. Suppose the President postpones the nomination until after the recess of the senate, in order to usurp to himself the unqualified power of appointment, is not this in direct violation of the constitution; and, if it is done wilfully and not through mistake of his power, is it not an impeachable offence? The case would undoubtedly be highly aggravated, if the President should appoint, during the recess of the senate, a person who had previously been nominated by him to the senate, and whose nomination had been expressly negatived by them.

The appointment of certain officers, which it would be superfluous to enumerate, is vested in the President alone, by the laws of the United States, made by virtue of an article in the constitution. Many, if not all such, are removable by the President at discretion. This provision, generally speaking, is conducive to the general interest, because, for many reasons besides malversation in office, a public officer may have lost the confidence of the President, or of the public, and may also cease to be qualified to discharge its duties. Besides, as the President is considered in some measure accountable for the neglect or failure of duty of those, whom he either appoints to office, or retains in it, it would seem no more than proper, that he should have the privilege of selecting those persons in whom he is to confide. Further, if the President were considered as having no right to remove a public officer, against whom no default could be proved, the tenure of the office would be changed. It would no longer be during the discretion of the President, but during good behavior. Great latitude of removal and appointment, therefore, should be permitted. Yet, it is obvious, very great abuses may be occasioned, if such an authority may be exercised arbitrarily and corruptly, without animadversion. Suppose, for example, the President should see fit to remove an officer, without assigning any reason; here, it can never be a proper subject of inquiry, whether the President had or had not a good and sufficient reason for such a measure; because the President is under no obligation to assign reasons for the exercise of this discretion; and, if any sufficient cause for the removal can be supposed, without impeaching the officer’s character, which ought not to be done on mere surmise, such cause in fairuess should be taken to be the true one. But, if the President should see fit to assign as a reason, any cause wholly unfounded in fact, and which he had no good reason to believe, or, which was perfectly consistent with a faithful discharge of the officer’s duty, and especially, if it were any cause, which would have a tendency to reduce all officers, who are removeable at the President’s discretion, to become his mere servile instruments, as to all acts, whatever, as well without, as within the sphere of their official duties, and whether such acts are right or wrong, such measure would deserve the severest reprehension. Because, it would be a tyrannical abuse of the discretion, intrusted to him by law for the public convenience, to the gratification of his ill will or arbitrary disposition. So, though the removal of one or more particular individuals from office, without assigning any reasons, might possibly be free from any invidious remark, however unexceptionable the characters of such persons might be; yet, if any President should, as soon as conveniently could be done, after entering upon his office as President, dismiss from all offices holden during his pleasure, all the former incumbents, and replace them immediately with such persons as had been most active in procuring his election, this also should be a sufficient cause for an impeachment; because it tends to produce, not only secret and indirect, but open and palpable bribery and corruption, in bargains and stipulations for offices, not in consideration of services done for the public, but for services rendered and to be rendered to advance the interests of a party or faction ; all of which is nothing less than selling the people, and pocketing the price. If such behavior in office is not liable to impeachment, of what avail is it, that it is regarded with disgust and contempt by every man of integrity.

Yet, it must be an extreme case, that would render it expedient to impeach the President of the United States. The great delay and consequently expense, which must attend so important a trial before so numerous a tribunal as the senate, prosecuted by the still more numerous house of representatives; the neglect or suspension of other public business during the trial, which would probably be the consequence, would hardly be compensated by the removal of the President from his office, the term of which is only four years, and more or less of which must be consumed in his administration previous to the impeachment, as well as afterwards during the trial. To these may be added the danger, that the course of justice may be impeded by strong collisions of opinion between political parties, which might lead to civil commotions and disturbances, the final issue of which, it might be impossible to foresee. In most cases, therefore, it would be best to trust to the discernment and influence of the more intelligent of the citizens, at the presidential elections, to take care that a person who had once been guilty of malversation in this important office, should not have a second opportunity; and if his misdemeanor amounted to a high crime, as treason, or bribery, to make it the subject of an indictment, where the trial will be speedy, and on conviction, the court will award a suitable punishment. But if the default originates from mere incapacity, that is, a want of knowledge, experience, or natural abilities, let the people by their electors, at the regular expiration of his official term, select some other individual better qualified for the discharge of the duties of this high office, and peaceably restore the former incumbent to that station in private life, which is so graceful to honest intentions, when disqualified for those of more responsibility, by the possession of very limited abilities.

But nothing can be more unbecoming a worthy citizen, than to make any charges of this kind, against the principal executive officer of the United States, upon mere surmise or suspicion, having no other foundation, than, that the President has exercised his discretion in certain cases, and that his motives are unknown. For, in all governments, power must be confided somewhere; when so confided, it is liable to abuse; otherwise, there would be no confidence. If then the possibility of an abuse, is a sufficient foundation to infer its actual existence, who can be secure from suspicion, from calumny, or even from conviction on an impeachment?

Division IV. Of the Judiciary.

1. General remarks. 2. Of the original jurisdiction of the Supreme Court of the United States. 3. Of its appellate jurisdiction. 4. Of the respect which ought to be paid to its decisions. 5. Passage from an opinion of Vh. Jus. Jay.

1. General remarks. The judicial department of every government, is the rightful expositor of its laws, emphatically of its supreme law. 2 Pet. 524.

In every well constituted government, it has been observed, the judicial power should be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws. See 2 Wheat. 397. 6 Wheat. 264.

Accordingly, under the constitution of the United States, the jurisdiction of the judiciary is coextensive with the constitution, laws and treaties of the United Sates, when the subject is submitted to it in the form prescribed by law. 9 Wheat. 738. See 5 Peters, 20. 6 Wheat. 264. For that power is capable of acting, only, when the subject is thus presented. Ibid. So, under the constitution, the courts of the Unionhave jurisdiction also of all controversies, between two or more states, between a state and citizens of another state, and between a state and foreign states, citizens or subjects. 6 Wheat. 264. In the former class of cases, the jurisdiction depends on the character of the cause; in the latter on the character of the parties. For, whatever may be the subject of the controversy, these parties have a constitutional right to come into the courts of the Union. 6 Wheat. 264.

Whenever, therefore, the correct decision of a case either in law or equity, depends on the construction either of the Constitution, or the laws of the United States, or of any treaty made under their authority, it falls within the jurisdiction of the national judiciary.

For it is held, where a right is protected hy a treaty, it is sanctioned against all the laws and judicial opinions of the states, and whoever may have the right, it is protected. But, if the person’s title is not affected by the treaty, and if he claims nothing under it, his title cannot be protected by it. 5 Cranch, 344.

By the constitution, the judicial power of the United States is vested in one Supreme Court, and such inferior courts, as congress may establish. It will be remarked, that under the constitution, original jurisdiction is given to the Supreme Court in certain specified cases, absolutely; in other cases, appellate jurisdiction only is given, ‘with such exceptions, and under such regulations, as the congress shall make.’ On this subject, it is held, that where jurisdiction is not given originally, it shall be exercised by appeal. Where it is given expressly by appeal, original jurisdiction is excluded. But where original jurisdiction is given, if another tribunal may also take cognizance, the power of appeal from that tribunal is not necessarily negatived. See 2 Wheat. 397.

As the original jurisdiction of the Supreme Court is pointed out by the constitution, it cannot be lessened or enlarged by an act of congress. For congress cannot transcend the authority confided to them by the constitution. See 1 Cranch, 137, 175.

But, in addition to the powers conferred on the Supreme Court in express terms, certain other incidental powers are also necessarily implied, as resulting to all courts from the nature of their institution. Thus, to fine for contempts; to imprison for contumacy; to enforce the observance of an order, &c. are powers which cannot be dispensed with in a court; because they are necessary to the exercise of all others. See 7 Cranch, 32.

Yet, it is held generally, that the judicial power granted in the constitution, can only be exercised in the cases and the modes prescribed by congress. See 3 Cranch, 170. 1 Cranch, 9. 3 Dal. 237, 6 Cranch, 312.

2. Of the original jurisdiction of the Supreme Court. In cases affecting ambassadors, other public ministers and consuls, the Supreme Court has original jurisdiction, by the constitution. Yet, it is held, that congress are not prevented from resting a concurrent jurisdiction in inferior courts as to consuls. See 2 Dal. 297.

The Supreme Court has also original jurisdiction in cases where a state is a party. On this subject, the following distinctions seem to be settled. A state may sue another state, or the citizens of another state, or the citizens of a foreign state. A state may be sued by another state or by a foreign state. But, by virtue of the eleventh amendment of the constitution, it is established that the judicial power of the United States shall not extend to a suit brought against a state, by the citizens of a state, or those of any foreign state. This amendment however excludes the jurisdiction of the federal courts, in suits only where the state is named defendant on record. 9 Wheat. 732. For although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction. 5 Cranch, 515.

And where a state obtains judgment against an individual, and the court rendering such judgment, overrules a defence set up under the constitution or laws of the United States, the transfer of the record into the Supreme Court, in order to inquire, whether the judgment violates the constitution or laws of the United States, does not constitute a suit commenced or prosecuted against a state within the eleventh amendment. See 6 Wheat. 264.

Under the construction, that has been given to the constitution, any foreign state may sue any of the United States, before the Supreme Court of the United States, and for this purpose, it has been held, in general, that the Supreme Court will consider as sovereign and independent slates or nations, (and consequently foreign nations) those powers, that are recognized as such by the executive or legislative departments of the government. See 5 Peters; cites 4 Cranch, 241. 4 Wheat. 64. 3 Wheat. 64.

Yet, it seems, if a domestic, dependent nation (in which light the court viewed the Cherokee Indians in this case,) should be wronged, as a nation, the Supreme Court will not entertain jurisdiction of any suit brought by them against such state. Because these Indians are not looked upon as a foreign nation, within the intent of the constitution, so as to enable them to sue the state before that tribunal. The supreme court in any such case, can neither redress past wrongs, nor redress future ones. Because to do this effectually, would require the exercise of political power, which is not intrusted to the court. See 5 Peters. 20.

But though the supreme court has original jurisdiction in certain cases under the constitution, it does not follow that congress may not also vest concurrent jurisdiction in some other national tribunal, as for instance, the circuit court; because the word original is not to be taken as exclusive. See 2 Dal. 417. 6 Wheat. 632.

3. Of its appellate jurisdiction. The appellate jurisdiction of the supreme court, may be exercised in all cases specified in the constitution, other than those, in which it has original jurisdiction; and their exercise of such jurisdiction over the state tribunals, is not restrained by the constitution. 6 Wheat. 254. The appellate jurisdiction of the supreme court, being given subject to such ‘exceptions and under such regulations as congress shall make,’ will depend on the construction given to the judiciary act and other acts of congress, taken in connexion with the constitution. Under these acts, it may be exercised, either by appeal from final decrees of the circuit courts or courts exercising the powers of circuit courts; or, by writs of error from final judgments of such courts; or, by a certificate from a circuit court, that the opinions of the judges are opposed on points stated; or, by writ of error from the final decrees or judgments of the highest court of law or equity in a state in certain cases; or, lastly by writs of mandamus, prohibition, habeas corpus, certiorari, procedendo.

But, no writ of error lies from the supreme court to the circuit court, in a criminal case. 3 Cranch, 159. 2 Dal. 197.

But, if the judges of the circuit court disagree in opinion in a criminal case, it may be carried up to the supreme court by certificate, as well as in a civil case. 7 Wheat. 42.

And no writ of error to the circuit court will lie, where the matter in dispute is not of greater value than $2000, exclusive of costs.

Under the judiciary act, the appellate jurisdiction of the supreme court extends to a final judgment or decree, in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a national treaty and the decision is against its validity. So, where a statute of the United States is drawn in question in the same manner, and the decision is against its validity. So, where an authority exercised under the United States is drawn in question, and the decision is against its validity. See 1 Wheat. 304. 6 Wheat. 264.

But, it is only, where the state court decides against the claim set up under the laws, Eic. of the United States, that the supreme court has appellate jurisdiction. 6 Wheat. 598. It is not sufficient that the construction of the statute is drawn in question, and that the decision was against the party, it must appear, that his title depended upon the statute, 12 Wheat. 117. And generally, it seems, under Sect. 25th of the Judiciary act, 1789 ch. 20, the supreme court has no appellate jurisdiction, in a suit where the construction of a statute of the United States, or a commission under them, is drawn in question, unless some right, title, privilege or exemption is set up by the party, under such statute, and the decision is against it. 12 Wheat. 117.

So, where in any such case, the validity of a statute of any state is drawn in question, as being repugnant to the constitution of the United States and the decision is in favor of its validity, it must appear that the right of the party depended on its validity, otherwise the court will have no jurisdiction. On the other hand, if the validity of a statute of any of the states, is drawn in question, on the ground of being repugnant to the constitution, or to the treaties, or the laws of the United States, and the decision in the state court, is in favor of the validity of the law of the state, the supreme court has appellate jurisdiction. So, if the validity of an authority exercised under any state is drawn in question, in like manner, on constitutional ground, and the decision in the state court is in favor of its validity. 1 Wheat. 304. 6 Wheat. 264.

So, where two parties in a state court set up conflicting titles under the same act of congress, and there is a decision against the title of either, the supreme court has appellate jurisdiction. 4 Cranch, 382. 8 Wheat. 312.

But, the judgment in the state court, in any such case must be final. A judgment reversing that of an inferior state court and awarding a venire facias de novo, is not a final judgment. 3 Wheat. 433. 6 Wheat. 448. 12 Wheat. 135.

The appellate jurisdiction in cases brought from the state court, is not limited by value. 8 Wheat. 312.

So the supreme court has jurisdiction, where the parties claim under grants made by different states, though at the time of the first grant, one state was part of the other. 9 Cranch, 292. See 2 Wheat. 369.

But there must be something apparent on the record, to bring the case within the appellate jurisdiction of the supreme court, otherwise a writ of error will not lie to the highest court of law or equity of the state. 2 Wheat. 263.

It is no objection to the appellate jurisdiction of the supreme court, thauone of the parties is a state, and the other a citizen of that state. 6 Wheat. 284. And here note, that citizenship in this case means nothing more than residence.

The supreme court has no authority on a writ of error, to declare a law of a state void, on account of its collision with the constitution of that state. 3 Peters. R. 288.

Under the judiciary act all the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, &c. The qualification seems to be essential; for it is held that the power of the circuit courts to issue a writ of mandamus is confined exclusively to those cases, in which it may be necessary to the exercise of their jurisdiction. 7 Cranch, 304.

The same act authorizes the issuing writs of mandamus, &c. to any courts appointed, or persons holding office under the authority of the United States. But, this latter authority is held not to be warranted by the constitution. 1 Cranch, 137, 169.

Where a district court refuses to proceed to judgment, a mandamus lies to compel it. 1 Paine, 453.

If a state court refuses to transfer a cause, under the act of congress, the circuit court may issue a mandamus. 1 Cooke, 160. So, if a collector of a port refuses to grant a clearance, a mandamus lies from the circuit court to compel him. 1 Hall L. Journal, 429.

In general, it seems, the person applying for a mandamus must be without any other remedy, and the officer to whom it is directed, must be one to whom such direction may be legally made. 1 Cranch, 137.

The supreme court has authority to issue a habeas corpus, where a person is imprisoned under the warrant or order of any other court of the United States. 7 Wheat. 38. But, it seems, in general, is restricted to cases, where the prisoner is confined under or by color of authority of the United States; or, is committed for trial by some court of the United States; or, where it is necessary to bring him in to testify. 1 Wash. C. C. Reports, 232.

If a district court should proceed in an admiralty suit, where it had no jurisdiction, a prohibition would lie from the supreme court. 3 Dal. 121.

An injunction may be issued to restrain an officer of a state, from performing an official act, enjoined by an unconstitutional statute of the state. 9 Wheat. 733.

A circuit court cannot enjoin proceedings of a state court, nor vice versa. 4 Cranch, 179. 7 Cranch, 278.

It is no objection to the granting of an injunction, that a party has a sufficient remedy at law. 9 Wheat. 733.

4. Of the respect which ought to be paid to the decisions of the Supreme Court of the United States. If, in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the construction must control the act. The court must determine whether a repugnancy does or does not exist, and in making this determination must construe both instruments. 2 Pet. 524.

Mr Justice Johnson in 1 Pet. 614, asks, ‘What is the course of prudence and duty, where cases of difficult distribution as to power and right, present themselves?’ and answers, ‘It is to yield, rather than encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur, in which the maintenance of principle, and the administration of justice, according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty,’ &ic.

In the establishment of this court, it is evident that the states intended to provide a supreme tribunal, not only for the decision of all cases, arising in the ordinary course, under the laws and constitution of the United States, but those also, where the rights or claims of any of the states, might seem to clash with those of others, or with the laws, constitution, rights, or authority of the general government. In these cases, the jurisdiction of the court is final and conclusive; and, from their decrees, there is no earthly tribunal to which an appeal can be made. And, though it cannot be doubted, but, that from the imperfection of human reason, they must sometimes err in judgment; yet, however important the interests may be, which are affected; however high and powerful the parties in any such case; the decision of this court must be submitted to and obeyed, even though it should be unjust. This consequence necessarily results from the theory of the government, established by the constitution. For, the decrees of all tribunals of final jurisdiction, are equally liable to the objection, that they may sometimes err. But, as erroneous decisions must be of rare occurrence; and, as it is better that an erroneous decision should sometimes occur, than that parties should have no tribunal to apply to in case of conflicting pretensions, which they are unable to settle by negociation, the consequence of which would be an appeal to force, the supreme court may be considered as the standing arbitrator, agreed upon by the states in the federal constitution, in all the cases alluded to. The decisions of this court must therefore always be regarded as made agreeably to truth and justice; and, though a state may consider a decision wrong, and its interests in consequence of it injuriously affected, still such state has no right to disregard and disobey, and far less to resist the decision of the court. For, they can have no better ground to resist, than the opinion which they entertain of the justice of their case. But, unless they are to be judges in their own cause, this amounts to nothing, because the other party may have an equally good opinion of his side of the question; and, to prevent the evil, which usually arises from such conflicting claims or pretentions, is the very object sought for in establishing a common tribunal. There is no mutuality in a general submission to arbitration, where one party considers it binding in all cases submitted, whether the decision is for or against him; and the other considers it binding only when the decision is in his own favor.

Still the decisions of the supreme court are not to be considered as conclusive evidence of absolute right, politically speaking. For, there is nothing to prevent any state, which considers itself injured by a decision of the supreme court, from urging the injustice of the decision, as a ground, either for amending the constitution, or, for repealing a law of the United States, so far as either of them may have furnished occasion for an unjust decree.

It may be observed here, that though the question, whether a certain law or other public measure, be constitutional or not, in a government of laws, would appear to be very properly submitted to the highest court in the nation; yet it does not seem quite reasonable or proper, that the decision of so important a question, should in any case depend upon the opinion of a bare majority of the judges. Since, where a law has been enacted, or other public measure adopted, with the joint sanction of the wisdom of both houses of congress, and has also received the President’s approbation, to suffer it to depend on the opinion of a bare majority of the judges, to decide whether it is constitutional or not, is to leave it in such case, in the power of the single individual, whose opinion turns the scale, to control the collective voice and wisdom of the whole government. For, it is possible that a law may be enacted unanimously by congress, and be approved of by the President, and, on a question in relation to its constitutionality before the supreme court, may be decided to be unconstitutional, by the turning voice of the least able of all the judges on the bench. It would seem more proper in every case, to presume so far on the prudence and wisdom of congress and the President, as to trust in the first instance, that they would not transcend their authority by enacting an unconstitutional law; and therefore to consider every law as constitutional, until it had been decided to be unconstitutional, by the opinions of two thirds of the judges of the supreme court, notwithstanding the opinions of a majority of their number should be against it. The constitutionality of a law of any of the states, however, has no claim whatever to be treated with the same respect. For, the majority of congress can seldom or never have any particular or partial interest to serve, in the passage of any unconstitutional law, which in its own nature must be of general application. But each state has its own private interest to consult, distinct from that of the rest, and this interest there is good reason to apprehend, may sometimes tempt the state governments to make unconstitutional attempts to enact and enforce laws, by which the rights of others may be injuriously affected. The presumption in favor of the constitutionality of a state law, consequently, must naturally be much weaker, than that of an act of congress. It would seem therefore a very reasonable distinction, to consider every state law, in relation to the federal constitution, as constitutional, so far as it affected persons and property within the state, until it had been decided to be unconstitutional by a majority of the judges of the supreme court of the United States; while a law of the United States should be considered as constitutional, until decided not to be so, by a majority of two thirds of the judges of the same tribunal.

The increase of the States in population and wealth, and consequently in political power, is so rapid, that, in all probability before many years will have elapsed, it will be found necessary to adopt some new measures, in order to give the supreme court more weight and strength, in proportion not only to its respectability, as the highest tribunal of justice in the United States, but as the best and firmest barrier, against any usurpation, or tyrannical abuse of political power. It will be found expedient to enable this court to enforce its righteous decrees instantly, in cases of oppression, arising from an abuse of power in violation of the constitution. The life, liberty and property of every citizen of the United States should be placed within the protection of this court so effectually, against oppression by an unjust exercise of political power, that after a decree in his favor, neither of them should continue in jeopardy a day longer than may be necessary to give notice of the judgment of the court. In the theory, the beau ideal of the federal government, no doubt this was intended; and, by the laws of the union it would seem, that an insurrection or levying of troops with or without a pretence of political power, for the purpose of resisting the execution of a decree of the supreme court of the United States, must be treasonable. Yet, where there is no other resistance to the decree of this court, than what is implied in a simple act of disobedience to it, the penality of the clause of non omittas, should be of a severity proportioned to the importance of the case. For, what can be a greater disgrace to the government of the Union, than to have the decrees of its highest tribunal openly contemned and disregarded?

To relieve the judges of this tribunal, of part of the great responsibility, which is placed upon them; to preserve this court as incorruptible, impartial and independent, as it always has been ; to protect it from the obloquy, which upright decisions always occasion in the unjust and unprincipled; some such measures as the two following would seem to be advisable to be adopted before many years. 1. To increase the number of judges as high as twelve, at least. 2. To establish a seniority among the states, so that, as vacancies hereafter arise on the bench, each state in its turn may have the appointment of one of the judges of the supreme court. The appointment might be entrusted to the Governor by and with the consent of the senate of each state. It would be found expedient, also that the Union should be classed under four divisions of six states each; and it would be sound policy for the prevention of jealousies, to take care that two judges should never be taken from the same division in succession. This would prevent any predominance in the supreme court, of the North over the South, or of the East over the West, and vice versa.

In general the policy of having one department of the general government, depend upon another co-ordinate department, for the appointment of its officers, seems liable to exception, if it is intended to be, as it ought to be, perfectly independent. For the same reason, they ought not to be liable to be removed by an address of both houses. For, while they are exposed to this danger, if any political question should be brought before them, in which the dominant political party in congress for the time being, has any strong interest or bias, the judges will be liable to lose their offices, if their views of justice do not coincide with the feelings of a majority of congress. For the same reasons, they ought not to be under any obligations to the President for their nomination. All such relations are supposed to have a tendency to diminish the independence of a judge, and consequently his impartiality, in cases where the President’s views, feelings or interests are concerned in any case brought before the court; and though such suspicions, it is believed, are almost invariably groundless, yet a judge ought not to be placed in a situation, where he may feel an inducement ungratefully to decide against one to whom he is under obligations and whom he believes to be in the right, or otherwise be exposed to the calumny and obloquy of the illiberal, as if he had sacrificed justice to partiality.

The supreme court of the United States is the firmest stay and support of the Union. Being the least swayed by party considerations, it is the most upright, and consequently, in a literal as well as figurative sense, it is the most firm and stable. Having its foundation in principle, and not in faction, ambition, love of popular applause or selfish interests, it is the most to be relied on of all the departments of government. Every thing possible therefore should be done to support its dignity and independence. For, while this department of the general government is kept spotless and incorruptible, and while it has power to enforce its decrees; though intrigue and corruption should taint every other part of the government, the union of the states, and the constitutional or political rights of each individual citizen, will still remain unviolable.

5. This Chapter it is believed cannot be better terminated, than by the quotation of the following passages in the opinion of Ch. Jus. Jay, in the case of Chisholm v. Georgia.

‘Prior to the date of the constitution, the people had not anynational tribunal, to which they could resort for justice. The distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens, and that even in cases, where state considerations were not always favorable to the most exact measure. There was danger, that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and policy.

Prior also to that period, the United states had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest, as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state relative to the laws of nations, and the performance of treaties, and there the inexpediency of referring all such^questions to state Courts, and particularly to the courts of delinquent states, became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but, in a stable. sedate, and regular course of judicial procedure.

These were among the evils against which it was proper for the nation, that is the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the constitution. The people therein declare that their design in establishing it, comprehended six objects. First, To form a more perfect union. Second, To establish justice. Third, To insure domestic tranquillity. Fourth, To provide for the common defence. Fifth, To promote the general welfare. Sixth, To secure the blessings of liberty to themselves and their posterity.

It may be asked, what is the precise sense and latitude, in which the words ‘ to establish justice,’ as here used, are to be understood? The answer to this question will, result from the provisions made in the constitution, on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. First, To all cases arising under this constitution; because the meaning, construction, and operation of a compact, ought always to be ascertained by all the parties, or by authority derived only from one of them. Second, To all cases arising under the laws of the United States; because, as such laws constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party, from whom they are due, but by a tribunal deriving authority from both the parties. Third, To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation. Fourth, To all cases affecting ambassadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. Fifth, To all cases of admiralty and maritime jurisdiction, because as the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. Sixth, To controversies to which the United States shall be a party; because, in cases in which the whole people are interested, it would not be equal or wise, to let any one state decide and measure out the justice due to others. Seventh, To controversies between two or more states; because, domestic tranquility  requires, that the contentions of states should be peaceable terminated by a common judicatory; and because, in a free country, justice ought not to depend of the WILL of either of the litigants. Eighth, To controversies between a state and citizens of another state; because in case a state, that is all the citizens of it, has demands against some citizens of another state, it is better that she should prosecute their demands in a national court, than in a court of the state to which those citizens belong; the danger of irritation and criminations arising from apprehensions and suspicions of partiality being thereby obviated. Because, in cases where some of the citizens  of one state, have demands against all the citizens of another state, the cause of liberty and the rights of men forbid, that the latter should be the some judges of the justice due to the latter; and true republican government requires, that free and equal citizens should have free, fair, and equal justice.*

Ninth, To controversies between citizens of the same state, claiming lands under grants of different states; because, as the rights of the two states to grant the land, are drawn into question, neither of the two states ought to decide the controversy. Tenth, To foreign states, citizens or subjects; because as every nation is responsible for the conduct of its citizens towards other nations; all question touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on national authority.

*This last clause refers to the ground of the particular point decided in the case, Chisholm v. Georgia, viz., that under the constitution a state might be sued by a citizen of another state. In consequence of this decision the eleventh amendment of the constitution was made.

Continued in CHAPTER IV. Of the Powers delegated to the State Governments, by the people of each State respectively.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

These may interest you also:
Governments Corrupted By Vice and Restored By Virtue: by Samuel Langdon 1775
The Importance of Free Speech and The Free Press in America
The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849)
THE LIBERTY OF THE PRESS by Charles F. Partington 1836

RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact

Stock Photo of the Consitution of the United States and Feather QuillThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Chapter Two

Of the Social Compact of the Citizens of the different States in the American Union, in the formation of the General Constitution, taken in connexion with the real or supposed compact of the citizens of each State, in the formation of its own Constitution or State Government.

In order to form distinct ideas on the subject of the present chapter, it will be necessary to consider the situation of the thirteen states which first adopted the general constitution, immediately previous to that important transaction. From the year A. D. 1776, when Congress declared the colonies free and independent states, the war with Great Britain was carried on under articles of confederation, the powers conferred on the Provincial Congress, by which, may be considered as constituting the first general government of these territories or provinces. The project of a union, however, seems first to have been suggested some twenty or thirty years previous, by commissioners appointed by the colonies, at the call of the crown. These commissioners met at Albany, in July, 1754, and as among them, were found such discordant materials, as Governor Hutchinson, Governor Pownall, and Dr Franklin, entertaining political opinions so very different,—it might be a matter of curiosity to examine thoroughly a plan of government which is principally ascribed to Dr Franklin, and to which, it appears, the others agreed. It must suffice however, to observe, that the general government was to unite the colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina and South Carolina, and be administered by a President General, to be appointed by the crown; and a grand council, to be chosen by the representatives of the people of the several colonies, met in their respective assemblies. The assent of the President, who constituted the executive, was requisite to all acts of the grand council; the members of which were to be chosen every three years. The general government was to have power to make treaties with the Indians, &c.; raise and pay soldiers, and equip vessels, &c.; to make laws, to lay and levy general duties, imposts and taxes. Each colony was to retain its own constitution, except so far as it might be altered by the act of parliament, which should establish the general constitution; that is, so far as they were inconsistent with the general constitution. Any colony however, was to be at liberty to defend itself on sudden emergencies. This project, though agreed to by Pownall and Hutchinson, was rejected in England.

ArticlesConfederationTo return; the government established by the articles of confederation, though it carried the country through the arduous conflict with so powerful a country as Great Britain, yet would hardly have been sufficient to do so, if the sense of common danger, as well as an enthusiastic ardor in pursuit of what they esteemed their natural rights and liberties, had not sustained the people. These powerful motives supplied what was wanting through the inefficiency of this system, and without their aid, the struggle for independence would have been weak and unsuccessful. But the hurry of arms, and the uncertainty of the final result of the conflict, rendered it impossible, while the suspense lasted, to remedy the evils and defects of this system of confederation, though they were most sensibly felt; since Congress were not able to bring into the field, or to sustain while there, so much of the strength of the country, as its extreme exigencies frequently required. The desperate struggle might not have been of so long continuance, if the provincial congress had been able to enforce its requisitions, instead of being obliged to rely on the provinces or states, for that purpose.

After the termination of the war, which was brought to a successful close in 1783, by a treaty with Great Britain, acknowledging the independence of the United States, and the bond which connected them with that country was severed, the states were left in a state of nature, and consequently were at liberty to assume whatever relations towards each other, they thought expedient, or could agree upon. It is true, they were at that time associated or allied together by the articles of confederation, and whatever duties or obligations they had assumed upon themselves by virtue of those articles, were still binding. Yet, as those articles were generally admitted to be insufficient for the purposes for which they were adopted, and it was proposed, if practicable, to frame a government less liable to this objection, the articles of confederation may be wholly overlooked, so far as the subject of this chapter is concerned.

The relation which the several states had to each other at that time, being thus settled, it remains to consider, what relation the citizens of each state had to their own state governments and towards each other, when the federal constitution was adopted. This is sufficiently evident. Because, as soon as the connexion of the provinces or states, with the British government was completely dissolved, by the treaty of 1783, acknowledging their independence, the authority of the several state governments, over their respective citizens, was either the result of an express compact by the people of each state for the formation of a state government; or, without any such express compact, derived its sanction, in part, from long previous usage under the colonial or provincial government; and, as to the rest, though in some few instances it might seem to be founded on a temporary assumption of power, arising from the extreme urgency of the case, yet was immediately ratified by the approbation of the people, or sanctioned by their peaceable and ready acquiescence. If For, the state constitutions were adopted by the people of the respective states at different periods of time. Some, while the revolution was going on; some after the termination of the war; and some but lately. Some of these, therefore, must be considered as being governed, from the time of the declaration of independence to the formation and adoption of constitutions by the conventions of their respective states, by rulers chosen under a temporary government, grounded merely on a supposed or implied compact, to conform to the usages adopted while under the colonial government, as far as was consistent with the change of condition and circumstances ; because the colonial government was dissolved, and yet no other had been expressly agreed. upon; and the colonial government being abolished, there remained no authority for any other, except such as must be inferred from the acquiescence of the people.

If, at this critical time, therefore, any acts should appear to be done by the rulers, beyond their express authority, in order to insure the public safety merely; yet the urgency of the occasion, the danger of delay in order to obtain the express concurrence of the people, and the fair intentions of the rulers, seem to furnish a sufficient excuse. For, it cannot be doubted, that in cases of extremity, where there is not time to wait for express instructions, the rulers having it in their power to do certain acts, which they think necessary to preserve the citizens, though such acts are not strictly within the scope of any powers expressly delegated to them, will do well to assume this responsibility. And though such acts, if performed by the rulers from motives of personal aggrandizement, or other considerations merely selfish, would have deserved the severest censure and animadversion, as consisting in a tyrannical usurpation of power; yet, when actuated by a regard for the general welfare alone, the rulers have resorted to them from a want of any other safe resource, they become highly praiseworthy. It is true, if such acts are thought inexpedient by the people, and as so, are rejected by them, they will not be binding upon any one; yet, until so rejected, they may be considered as sanctioned by the tacit acquiescence of the citizens; and if they are adopted or expressly approved of by the people, they become as effectual as if authorized by them in the first instance.

declaration_of_independenceBy a reference to the state constitutions, it will immediately appear, that though the powers delegated in them by the people of each state, vary in extent and duration ; yet they are all republican in their form, consisting of a legislative body, variously divided, an executive or chief magistrate, and a judiciary. These for the most part are independent of each other; and, with the exception of the judiciary, depend on popular suffrage for their offices. In some states, however, the judges also are elected by the people.

It does not, however, come within the limits of this work to enter into any particular detail, as to the forms of the various state governments. For full information in relation to them, reference must be made to the collections of the laws of each state, and to its history from the time of the commencement of hostilities in the American revolution, down to the time when such constitutions were respectively adopted.

From the view of the subject that has just been taken, however concisely and imperfectly, it sufficiently appears, that at the time of the formation of the federal constitution, the people of the several states were living under legitimate state governments, independent of each other, and having no further connexion with each other, than by means of the articles of confederation; and, consequently, that if those articles had been abolished, without the substitution of the present constitution or some other, the states would have been as entirely free from all dependence upon each other, as the kingdoms of France and England are at this moment. When the constitution therefore, was submitted to the different states for their consideration, to be adopted by them if they thought expedient, each state, being thus wholly independent of the rest, considered itself, and was considered by all the others, and without doubt very justly, at perfect liberty either to accept or to reject it at discretion, and this without any obligation to take into view any thing beyond its own interests. The circumstance that a majority of the states were in favor of its adoption, had no operation whatever to bind the others, though a minority; for, each state had then a natural right to act for itself, without being justly subject to the control of any other state or nation. If the two states of the thirteen, North Carolina and Rhode Island, had thought best not to join the Union, they would have remained in a state of nature in relation to the others, that is, with all the rights and liberties of an independent tribe or distinct people, and would neither have been bound by its laws, nor could justly have been compelled to submit to its power.

During the war, the articles of confederation, as has been suggested already, were found defective in many respects; especially, because under them, the congress could neither raise men nor money of themselves; they could not adopt any general measures for the public safety, unless the states were unanimous; and could do but little more than recommend measures to the different states, which their legislatures adopted, enforced, rejected, or neglected, as they saw fit.

After the termination of the war, the confederation had no power whatever to provide for the payment of the national debt; foreign nations hesitated to enter into treaties with the states, because under the articles of confederation, Congress had no power to enforce a compliance with it by the several states. Another defect was that thirteen distinct judiciaries had a constitutional right to decide on the same subject. And generally, as observed by a distinguished historian and biographer, it was found impossible for a government to answer the purposes for which it was established, while the enforcement of its decrees or acts, depended on the discretion of other parties.

Further; the unsettled state of public affairs after the treaty of 1783; the want of subordination of the people to their respective state governments; the want of good faith in some of the state governments; and the consequent want of some sufficient tribunal to compel its observance; and the little regard paid by some of the state governments, to the most earnest recommendations of Congress; rendered it absolutely necessary to adopt some form of government more energetic than that established by the articles of confederation. On account of these defects, as well as many others, it was thought advisable to amend these articles, so as to remove as far as possible, all the evils arising from them. A motion was made accordingly by Mr Madison, the late president, for a proposition to all the other states to meet in convention, and digest a form of government adequate to the exigencies of the Union. It was not intended however, at this time by Congress, to introduce an entirely new system, but merely to amend that of the confederation. For the delegates to the convention were appointed, ‘ for the sole and express purpose of revising the articles of confederation and reporting to Congress alterations therein.’ The defects of that system however were considered incurable, and the convention, though perhaps in strictness it did not come within the terms of their commission, made a draft of the present constitution, with the exception of the amendments which have since been made, and recommended it to the citizens of the United States for adoption. This constitution being afterwards ratified and adopted by all the states, all objections on account of the previous informality just alluded to, are wholly removed by the voice and sanction of the people. It was at first adopted by eleven of the states only out of thirteen, and North Carolina and Rhode Island afterwards acceded to it.

Constitutional-RepublicThe present constitution of the United States is therefore a social compact made by the inhabitants of certain territories, which, previously to its adoption, had local governments established within them, organized with powers, which acknowledged no superior, as long as they did not overstep the limits set to them either expressly or tacitly in the respective state constitutions. Cut, in the adoption of the general constitution, the supremacy of the state governments, as well as the independence of the states was limited in the same degree precisely, as they became bound by their own voluntary act, to obey all laws made by virtue of the general constitution. For, the supreme power, within the limits prescribed in it by the people of the United States being taken from the state governments, if it had ever been conferred on them, was bestowed on the general government; or if otherwise, was directly granted by the people to the general government. This is apparent, because the general constitution was made or agreed to, by the people of the thirteen states, the people of each state then constituting a distinct independent tribe or nation, and each tribe or nation acting in its original capacity, as one of the elements of this compact, and exercising those natural rights which belonged to each as an independent tribe or nation, before this general compact was made in the constitution of the United States. It would seem to be a great mistake, to suppose that this general constitution was made by the state governments, on behalf of the independent nations under their government; for, they had no authority from the people of their respective states to do any such act: On the contrary, special delegates were chosen by the people of each state respectively, for the express purpose of deliberating upon, and, if they thought fit, of adopting the constitution proposed. The ordinary representatives of the people elected to serve in the state governments, were not intrusted with the management of this important transaction, but recourse in each state was had to the highest known abilities and integrity, which it was supposed might be drawn forth on this occasion, however averse to aim at making a figure in legislative assemblies.

It may be objected, that agreeably to the preamble to the constitution of the United States, the constitution is to be considered as adopted by the people of all the states, acting as the elements of a single nation, without any reference to the state governments, or to the fact that they were members of independent organized societies already existing. But the preamble, on the supposition that this is its true construction, merely shows the light in which the people agreed to be viewed in the adoption of the constitution. Their agreement however cannot alter the fact, and that the other construction is the true one, seems to result from the following considerations.

1. If the people of the United States had intended to adopt a constitution, in their collective capacity as one great nation, without any reference to territorial or state governments, or to the independence of each individual state, there should have been no calling of separate state conventions for the adoption of the constitution, but delegates should have been chosen from all the states to one general convention, for the purpose of deliberating upon and adopting and ratifying it. But, in fact, after the constitution was approved of by the convention, whose whole authority in strictness was confined to revising the articles of confederation and proposing alterations in them, the ratification of the constitution was given by delegates chosen by the several states for the purpose of deliberating upon, and, if they saw fit, of adopting and ratifying it. The constitution therefore was adopted by the citizens of the several states, acting as distinct nations, the ratification being given by the respective delegates of each, meeting in state conventions.

2. If the constitution were instantaneously abolished, the union would be resolved, not into one nation in a state of anarchy as to national supremacy, but into the several nations inhabiting the territory of the respective states, and under independent and supreme heads; for, all those powers which are taken from the state governments expressly by the constitution, or tacitly by the mere act of adopting it, if the constitution should be abolished, will, without any further act immediately revive to the state governments respectively.

3. The compact made in the general constitution, may be rescinded by the people in the same manner which was adopted in the making and ratification of it, i. e. the same majority of all the states acting as nations, may rescind it. The states or nations, acting politically, are therefore the elements of the general compact, and not the individuals of all the states, acting as the elements of one great nation.

4. Though the state legislatures have no right at all to rescind the constitution, even if every state legislature in the United States were unanimously in favor of rejecting it, yet, it is only because the people of the respective states have never entrusted them with any such power. Yet, it is apparent, if the people in each of the states should give the power to decide on this momentous subject, to delegates chosen by them to meet in their respective state conventions, those delegates might dissolve the union.

5. If the constitution was framed and adopted by the people of all the states, acting as members of one great nation, then this absurdity would follow, that if there had been a majority in any individual state against adopting the constitution, still that state must have come in, because the majority of the people of the United States were in favor of adopting it. This shows conclusively that, however the people were willing to have the constitution viewed after its adoption, they in fact acted as independent nations in adopting it.

This subject will be further commented on under Chapters IV, V, and VI.

Continued on: RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights
These may also interest you.
POLITICAL CONSTITUTIONS by Johannes Von Muller (1832)
THE LIBERTY OF THE PRESS by Charles F. Partington 1836
The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849)
Constitution of the United States and it’s Governmental Operations (In Plain English)
 Non-Revisionist Politically Incorrect History of America from the Ancient Authors Part 1

RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two

PrecedentThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


Division II. Of those natural rights which are usually retained in organized society. Sec. I. Of self defence in cases of extreme urgency.— Sec. II. Of qualified liberty, under which is considered, 1, the right of expatriation; 2, the rights of conscience and freedom of inquiry; 3, the right of property; 4, the right of equality; 5, the right of freely discussing public measures; 6, the right of petition and remonstrance; 7, the right to reform the Government.

Sec. I. Self-defense in cases of extreme urgency. The first and most important of these rights, is that of self-defense. This right is reserved to every individual, in all cases, where there is not time sufficient to apply to the government for protection. So that, if a man is assaulted, and his life is in extreme danger, and he has no opportunity to apply to the police, because his case will admit of no delay, he will be excused by the law of society as well as by the law of nature, if he takes the life of his assailant, supposing always that he has no other way to save his own. For, in any such case as this, society cannot afford him that protection, which was one of the principal motives, which led him to unite with others in the formation of it. His natural right to protect himself in any such extremity, is therefore always reserved to him. But, where the aggression is threatened previously to its being actually made, no individual has a right to make preparations for his own defence, personally, if such preparations constitute a disturbance of the public peace. In any such case, the individual threatened ought to apply to the proper officers of the society for that protection, which it is their duty to afford him.

Bill of RightsSec. II. Of qualified liberty of action; freedom from unnecessary restraints, requisitions and exactions, &c. Where the people form a social compact, contained in a written constitution, the extent of the powers granted to the government, may be defined with precision. But, where there is no written constitution, the extent of such powers is ascertained by usages and precedents, that is to say, by the practice of the rulers, sanctioned by the silent acquiescence of the people, in peaceable and quiet times. In different societies and under different governments, the powers of the rulers, and the consequent restraint on the natural liberty of the subjects, vary greatly.

Civil liberty consists in not being restrained from acting, and not being constrained to act, by any law which does not conduce to the general welfare. But, it may be asked, how shall it be ascertained whether a law conduces to the general welfare or not? The answer is, this is submitted to the wisdom and discretion of the rulers. But, it may be asked again, is there no restraint upon the exercise of this discretion? The answer is, that they are restrained from enacting laws, or adopting any public measures which are inconsistent with the constitution, whether ascertained by usage or contained in a written document or compact. But, it may be asked again, who shall determine whether a law is or is not agreeable to the constitution or social compact? The answer must be, the tribunal (if any) provided in the constitution, for the determination of such questions, must decide. But, if none is provided, then that person or persons in whom the power is vested in the last resort, by the frame of government, whether a monarchy, an aristocracy, or a democracy, will have the constitutional right to determine. But, where the act in violation of the constitution, is committed by the very person or persons, to whom the supreme power of the government is given by the constitution; there is no peaceable remedy, if the illegal laws or measures are persisted in, after petition and remonstrance by the subjects; for the truth is, the frame of government is defective, and the conduct of the rulers or ruler is so far oppressive and tyrannical.

As the degree of restraint upon natural liberty or freedom, may vary under different constitutions or forms of government, it is obvious, that it may also vary greatly under the same constitution at different times, owing to the various interpretations and constructions put upon it, by persons of greater or less integrity and intelligence.

The definition of the freedom, which men have in a state of nature, of consulting their own happiness in all they do, so as they offend against- neither religion nor morality, that is, provided they transgress no divine law, and do no injury to the rest of mankind, is sufficiently intelligible and plain. But, in a state of society, this single right branches out into a great variety of rights, each of which has received a distinct appellation. The first division of this natural liberty or freedom, is into a freedom from restraint, and a freedom from exactions or requirements. By relinquishing the first, we become liable to be restrained by the laws of society, from doing many things which, in a state of nature, we are at perfect liberty to do, without committing any wrong or injustice. By relinquishing the second, we become liable to be bound to do, by virtue of our social compact, and the laws made under it, many things, which, in a state of nature, we were under no such obligation to do, and which, from the general maxim of the natural equality of all mankind as to their rights, no man or body of men could have any right to compel us to do, without some previous consent or other act of our own.

Under the former of these branches of natural liberty, viz: freedom from restraint upon the right of action, may be comprehended,
1. The right of expatriation. That a citizen of any community, in ordinary cases, has a right to leave its territory at pleasure, and reside in some other country, and cast off his native allegiance to his own, seems to follow of course, from the preceding view of the natural rights of mankind, and the origin of governments. It is true, that this right has been absolutely denied by some, who hold that a man can never shake off the allegiance which may be claimed by his native country. This, however, seems something like setting up an idol, and is entirely contrary to the principles acknowledged in the constitution of the United States. For, if a foreigner cannot become an American citizen, without committing a crime, or at least doing a manifest injustice to the country of his birth, why is the naturalization of aliens permitted among us? Why is it thought worth while to inquire into the character of an individual, who, by the very act of applying for naturalization, which renders such inquiry necessary, shows that he is not fit to be a citizen of any other country, since he must first throw off his allegiance to his native land? But, though this may furnish an excellent theme for declamation, which will be omitted here, such opinion seems not to be sufficiently well grounded to stand the test of a close examination. For, what is a man’s country? Is it the place of his birth or residence? This would be a very unreasonable supposition, unless taken in connexion with its inhabitants, its frame of government, and its laws and institutions. For, a man cannot owe allegiance to inanimate nature, as mountains, rivers, and groves, whatever poets may imagine. Neither can it consist in the government, laws, and institutions; for, if so, then to change them in a material point, would deprive a man of his country. It must then consist in the inhabitants forming a society, the identity of which is preserved, like that of a river, by perpetual succession under the government to which he has either expressly or tacitly agreed, on the territory subject to that government, and belonging to its citizens.

If a man owes allegiance to any of these, let it be first supposed that it is to the government. But if it is owed to the government, independently of the inhabitants, then it must be due to the persons of the rulers for the time being. For the government in any other sense, is a mere abstraction. In monarchies, it is admitted, allegiance is due to the king, as the feudal head of the nation, and who is acknowledged to be the lawful political master and lord of his subjects. But such allegiance can be claimed only in monarchies and aristocracies. In our republic, to whom is allegiance due? The answer must be, that no such allegiance is due to any one. But, with regard to the state of which he is a citizen, each one’s allegiance is limited by the terms of the constitution made by the citizens of that state, and to which he has either expressly or tacitly assented. The same remark applies to the constitution of the United States, to which we must, resort, if we would know precisely the kind of allegiance which is to be considered as due from the citizens of the Union.

As nothing is said in restraint of this natural right of going where he pleases, or expatriation, in either of those compacts, it follows that a man may rightfully expatriate himself, and throw off his supposed natural allegiance to his own country, whenever he pleases, provided he was not personally a party to the original compact, and has never taken any oath of allegiance, either to the state of which he is a citizen, or to the United States. For, obligations like these, whatever the common practice may be, are not to be assumed and cast off again at pleasure.

But, perhaps it will be urged, that a man’s country consists properly in the succession of inhabitants in the territory and under the government of which he is a resident native citizen; and that, it is to these inhabitants in a body and in their political capacity as a nation, that allegiance is properly due. But, it may be replied, if he is under an obligation of this kind to them, every other citizen is also under a reciprocal obligation to him, as well as a similar obligation to each other. This supposition would gratuitously and unnecessarily impose reciprocal obligations upon every one of the citizens of a country, to remain in it subject to its allegiance, however adverse it might be to his interest or happiness; when, on the contrary, it would be much more agreeable to natural freedom, to consider every individual as having a right to expatriate himself, and form new connections at discretion. Whether an American citizen can throw off his allegiance or not, without an act of Congress to authorize him, seems not to be judicially settled. 7 Wheat. 283.

Further, if a man is under obligations to any one, it must be to his parents; yet nature sets him free from all ties but those of gratitude, affection and reverence, as soon as he arrives at maturity. If then he becomes free from them, there is certainly but little reason, why he should be under any higher obligations, in the ordinary course of events, to his countrymen, unless he has entered into some express, voluntary engagements to them.

It is not intended, however, to palliate or excuse, the conduct of any individual, who should see fit to exercise this right at a time when his country is in a state of peril or distress from hostile aggression, and has need of his assistance in its defence. The gratitude, which would be due to it, from him, on account of the protection it has afforded him during his youth, and the advantages which he has derived from its various laws and institutions, and the civilities and kindnesses which he has received from his fellow-citizens, would render his conduct deserving of the same reprehension as that of a son, who should refuse to relieve the necessities of his parents, on the ground, that gratitude is a duty of imperfect obligation, and that he had a natural right to do as he pleased in relation to the subject.

Neither is it intended to deny the perfect right of the government of the country, to adopt such measures, as may be necessary to protect itself against any of its citizens, who, not satisfied with renouncing their allegiance, should take up arms against their country, and abuse their knowledge of the weak points in its defenses, to insure its overthrow.

2. The rights of conscience, and freedom of inquiry. In a state of nature, these rights, as well as others of a similar kind, are derived from the natural freedom from the control of others, to which all men are entitled; while again this natural freedom results from the natural equality of all men as to their rights. If these rights are relinquished on the formation of society, it must be by virtue of the constitution or social compact of the society or government. But, if not so relinquished, either expressly or by tacit acquiescence, they remain unimpaired to the members of the society or body politic, and the rulers have no right to do any thing to infringe them.

It is not necessary, however, in order to authorize the government of a country to legislate on these subjects, that a power for that purpose should be expressly given in the constitution. It will be sufficient, if the constitution imposes no restraint on the government, to prevent the exercise of such authority, and that a particular emergency has arisen, requiring such legislative interposition. For, unless expressly prohibited, their general authority to provide for the public welfare, would be amply sufficient for this purpose. These remarks, however, can apply only to open acts, opinions promulgated, and doctrines openly taught and inculcated. For, under a general power to provide for the general welfare, to institute a scrutiny into private opinions, and to require men to avow or disavow them, whether in relation to religious, moral or political subjects, would be an act of mere usurpation, and grossly tyrannical. Yet, a government, it is obvious, may be authorized by the citizens who frame and adopt it, to exclude from the rights of citizenship, or naturalization, all foreigners, who refuse to disclose their sentiments, whether religious or political. And, for the same reason, may be authorized by their citizens, to impose a test whether religious or political, on the citizens themselves, the refusal to take which, should be considered as a disqualification for office, whenever the public good requires such a measure. But, in most cases, the adoption of any such course would be highly odious. For the same reason, if it were part of the constitution, that no individual, though born within the country, should have the rights of citizenship, if he should profess any other religion than that of the state, such person would be a mere resident alien. And if the legislature, being authorized for that purpose by the constitution, should deem it expedient to exclude from its territory, all persons, who were not of the same religion with that of the government, there would seem to be no absolute violation of natural right in this, though it would seem to be an act of gross intolerance, not to be justified but by circumstances of great urgency. To express this doctrine in a few words;—as every man* in a state of nature, has a right to exclude from his household and family, every individual of bad character, notorious for bad principles or corrupt practices, it cannot be doubted, that, in organizing a society, the constituent members may confer a similar power on their government by using express terms for that purpose. A general authority to take care of the public welfare, would also be sufficient for that purpose, unless the exercise of this general power were expressly restrained in this particular instance.

Under any such authority, whether express or implied, the government would have a right to banish from its territory, any individual who should undertake to teach or disseminate opinions dangerous to the peace or welfare of society. And on this subject, the rulers or constituted authorities alone, would be the proper judges. It will make no difference, in this respect, of what nature such opinions or principles may be, or whether they relate to religion, morals or politics, if they lead, or, by the constituted authorities are thought to lead, to injurious consequences. For, erroneous opinions on the subjects of religion and politics, are found by experience to be a fruitful source of public troubles and disturbances, with their bloody concomitants, tortures, rapine, murder, massacre and civil war: while erroneous opinions in relation to morals, may soon sap the foundation of innocence and virtue, and raise on their ruins, a temple dedicated to vice, corruption, abomination, Dagon and Moloch. Can it be doubted then, that the open teaching, promulgation and inculcation of false and dangerous opinions, should immediately be stopped? The government, supposing them to have full authority from the people on this subject, should exercise a sound discretion in relation to it. If they merely punish crimes and immorality when they occur, they perform only half of their duty; since they ought to stop the sources of corrupt practices at the fountain head, in vicious principles.

Yet, on the other hand, the most perfect freedom of inquiry should be allowed, for the sake of informing the conscience. For, it cannot be supposed, that any individual, by coming under the obligations of society, intended to surrender his liberty of conscience, or his natural right of worshiping God according to the dictates of his own reason, to the mere opinions of other men as fallible as himself. Still, no christian government can be under any obligation to tolerate any grossly immoral or indecent practices, under the pretense of indulging religious freedom. For, such practices constitute a disturbance of the public peace, and are an offence or nuisance to all the orderly citizens. For similar reasons, the public teaching of a false religion, or the open inculcation of doctrines, professedly aiming at the subversion of all religion, should be silenced by public authority. For, the government acting on the behalf of the people, have a perfect right to adopt such measures as they may judge necessary for this purpose, provided they do not interfere with the right of free inquiry for the private satisfaction of each individual’s own conscience.

It may be objected here, if these observations apply equally to all forms of government, where is the freedom, which is so much boasted of under democratic or republican forms of government? The answer is, that as, under a monarchy, it was never intended to deprive the people of the power of doing good; so under a republic or a democracy, it was never intended that the people should be free to do evil; and, if there is less power and opportunity of doing good under a monarchy, and greater liberty as well as temptation to do ill under a republic or democracy, it is no part of the design of the framers of such governments; but such consequences naturally attend the greater or less degree of freedom enjoyed under each, respectively. To restrain the introduction of dangerous opinions among the people, is no infringement of their liberties; on the contrary, it is the most effectual method of preserving what the people have in view, in the exercise of their liberties, viz: their tranquility and happiness.

Here it may be objected again, if this doctrine is true, then the rulers for the time being, will be the sole judges of the truth as well as the tendency of all avowed opinions, and open practices. Consequently if they chance to be in an error, the truth will be kept from the people. The answer is, it is no part of the duty of the government to regulate the consciences of individuals; but every person should be left at perfect liberty to form his opinions as he pleases, provided he does not disturb others with them. But, where the people and the government are agreed in the general grounds of their religious faith, it would be very extraordinary, if they had not a perfect right to exclude from their territory, any persons, who should disturb the public peace by attempting to introduce a new one.

These remarks, however, so far as they respect opinions on religious subjects, are not intended to apply to any organized society or government, where, on account of the great number of religious opinions, universal toleration is one of the fundamental articles of the constitution or social compact. Nor will they apply to persons, who profess to come as divine ambassadors, provided only they are furnished with those divine credentials, which furnish the only safe criterion, by which uninspired persons, can, in every case, distinguish between enthusiasm, fanaticism, or imposture, and true inspiration. But if, having no other evidence or assistance than other men, they undertake to disturb and revolutionize society, with the visions of their own imaginations or the mere deductions of their own understandings, without any other sanction or authority than enthusiastic reveries, or supported alone by the self-blandishing but fallacious supposition of their own intellectual superiority, and the ignorance and delusion of others, the government, having sufficient authority from the people for that purpose, will do no more than their duty in gently sending them out of the country without further molestation.

Neither are these remarks designed to apply in the slightest degree to missionaries, as if it were intended to deter them from what they consider their duty, in attempting to spread the divine revelation among the heathen. On the contrary, this most benevolent intention, this attempt to comply with or fulfill the divine command, ‘Go preach the gospel to all nations,’ cannot in the fallible view of our narrow understandings, be too much applauded. Still, they should be careful not to disseminate as divine truths, any mere opinions or inventions of men. If unfortunately they should propagate error, what thanks can they deserve? Certainly nothing more than the praise of good intentions, accompanied with the discouraging abatement, of having done harm instead of good. In this case, it is obvious, there is ample room for an apparent conflict of rights and duties. For, the missionary may possibly mistake the peculiar tenets of the sect to which he belongs, for the only essential part of divine revelation, and esteem it his duty to spread them even at the risk of his life. On the other hand, the government of the country may consider those peculiar tenets, as nothing more than pernicious errors, and consider it their duty to put a stop to the dissemination of them.

Where a christian missionary goes among the heathen, thus exposing himself to toil, danger, hardships, and privation in the service of the great Master of our religion, there can be but one opinion, as to his merit and his reward. On the other band, can there remain a doubt, that an enlightened christian community may adopt decisive measures, to prevent the propagation of delusion, fanaticism, or any doctrines of sufficient plausibility and having a tendency to disturb the public tranquility, by subverting the true religion in the minds of the weak and defenseless, and introducing in its place, principles productive of confusion and numberless disorders?

Suppose, again, an enthusiast should be so zealous as to go to Rome for the purpose of converting the Pope, a case which history informs us has actually happened; what better treatment could he have a right to expect, than was given in the instance alluded to, viz. to be sent to a mad-house? Might not the Pope very properly answer his exhortation, by saying, ‘Friend, it appears, that you have come hither, for the purpose of converting me to what you believe to be the true doctrine of the christian religion. Your design, though in some measure vainglorious, is filled with benevolence; and if you have any new revelation, of the authenticity of which you can furnish satisfactory proof, I am ready to listen to it with the deepest veneration and humility. But, if you have not, what vanity can actuate you to suppose that I shall substitute your infallibility in the place of that, which is commonly ascribed to my office.

‘If I am sincere in the profession of the Catholic doctrine, can you be so simple as to expect to convert me to your opinions without the advantage of any other revelation, than I have myself, by the superiority of your intellectual powers alone? Or, if I am not sincere, what occasion is there for your kind offices? Would you take up arms against a shadow?’

3. The right of property. As society is organized for the security of property as well as life, this right remains in full force, and cannot be invaded without the grossest tyranny and oppression.

This right however is not infringed by equal taxes for public purposes, imposed by adequate legitimate authority. A misapplication or misappropriation of funds in the public treasury, however, must be considered as a violation of this right, though it is also a great breach of public trust. Any regulations introduced by law, for the transmission of property by descent, or directing the mode of transferring property on a sale, will be free from exception on this account; provided that no estate actually vested under a law, is divested by the operation of a law afterwards enacted. In any case, where an individual fails to receive what he had stipulated for, or what otherwise he would have a just right to expect, from an omission to comply with the laws of society, it must be ascribed to his own imprudence or negligence.

4. Right of equality. As men are naturally equal in their rights, there can be no doubt, as has been already remarked, that no individual would be willing to join in organizing a society, unless he were put on an equal footing with others, as to all the rights secured to him in the social compact, or constitution of the society. It would obviously be no violation of this principle, if, in the constitution itself, it had been stipulated and agreed, that certain classes of persons, which classes should be accessible to all, should have greater powers, or should be exempted from certain public burdens. There is nothing unfair or unequal in this, in reality.

Neither would it be a violation of this principle, if a law should be passed, making men liable to certain common burdens for the benefit of society, as soon as they arrive at a certain age, and to exempt them from such burdens, as soon as they arrived at a certain other age, as in the case of military service. Because the law is general in its application, and the difference of condition occasioned by it, is merely temporary. Since every man, however aged, has once been young; and the young, if they live, will certainly arrive at an age, at which they too will in like manner be exempted. But, it would be a violation of this principle, if the legislature should attempt to alter by law, the requirements of individuals made in the constitution in order to qualify them for the exercise of certain civil rights, either by adding to or taking from them; or, by imposing new conditions, or removing old ones. And therefore a disqualification of individuals by law, grounded on distinctions not recognized in the constitution, is a violation of this principle.

For the same reason, a sacrifice of the interests of particular individuals, or inhabitants of particular districts, either in favor of other individuals or classes, or, even in favor of the public at large, is a violation of this right. But the government is generally considered as having authority to apply private property to public uses, if an adequate compensation is made to the proprietor, especially in cases of great emergency.

Where the operation of a law is, to prefer one class of citizens over another, the question, whether the law is to be considered as a violation of the natural right of equality, will depend upon the previous question, whether this effect is one of the principal inducements to pass the law; in which case it is tyrannical, as emanating from an usurped power; or, whether, without having such inducement, the principal operation or effect of the law, is to give such a preference; in which case, it is unjust because unequal in its operation, and if continued after notice of its effects, is also arbitrary and oppressive; or whether this unequal effect was wholly overlooked by the legislature, and is a necessary attendant upon some great public advantage, the obtaining of which, was the sole object which the legislature had in view in the passing of the law; in which case, it will be no violation of private right. But, as one class of citizens ought not to be sacrificed for the benefit of another, or, even of the public, the latter, out of the great advantage which they derive from the law, ought to make satisfactory compensation to those persons, who are sufferers by its enactment; the loss to be ascertained by impartial appraisers or assessors. If the public are not willing to make this compensation, the wrong to the property of the suffering class or individuals, is neither more nor less than a robbery under pretense of law. But, if the public cannot afford, out of the benefit which they derive from the passage of such law, to make such compensation, it is conclusive proof, that the law is inexpedient as well as unjust; since it will occasion more disadvantage than benefit. Where the principal operation of a law is to give a preference to one class of citizens over another, this is not a cause for compensation; but is a direct violation of the right of equality, to be waived by the injured class alone. As soon as this effect is ascertained, therefore, the law should be immediately repealed.

5. The right of freely discussing public measures, &c. Another right, which, it must necessarily be presumed, the people mean to reserve to themselves in every free elective government, is that of discussing the qualifications and characters of all candidates for public offices, who consent to stand for them, as well as the character, conduct, and general measures of all public officers. This subject will be considered more at large in Part II. Chapters 1 and 2.

But in governments so framed, that misconduct in the chief ruler or magistrate, does not by their constitutions, involve his disqualification for office, or his removal from it, whether it be elective or hereditary, it would be of no advantage to the people, for each citizen to have a right to comment harshly upon him, for the purpose of bringing him into hatred or contempt with the people; since it could have but little tendency to correct public grievances, but might lead to public disorders and disturbances, and thus, instead of removing evils, might aggravate some and occasion others. For, it would be impossible to prevent the right of animadversion on the conduct of a bad prince, from being perverted to an unjust vituperation of the character and conduct of an excellent one. On the contrary, is it not very possible, that under a good prince, there might be thousands of factious demagogues, who, under the pretense of patriotism, the public good, and freedom and the rights of man, and other topics of popular declamation, might asperse and vilify their rulers; while under a cruel and merciless tyrant, whose public life was a disgrace to human nature, and whose administration of public affairs, was impolitic, unjust and ruinous, those same pretended patriots, from fear would have remained in perfect silence and perhaps have been most conspicuous for abject sycophancy and fawning servility? (fn1) Under all arbitrary governments, therefore, seditious speeches and writings are considered but little short of treason, to which they directly tend.

6. The right of petition and remonstrance. Another right retained by the people in all free governments, and which it is believed, is seldom denied under the most arbitrary and tyrannical, is that of representing to the government any particular evil or grievance, which the petitioner suffers from any law or other public measures, and requesting its removal, or that suitable compensation be made him for the damage, which he sustains in consequence of it. It should not be considered any infringement of this right, that the petition should be made in decent and respectful terms, however contrary it may seem to the opinions of those persons, who from a mistaken idea of the true principles of democracy, think there can be no freedom, where the private citizens may not affront and insult with impunity their superiors in office.

7. The right to reform the government. On this critical and dangerous subject, it seems difficult to establish any certain principles of general application, which will not be liable to be abused and misapplied, and which consequently may not involve in their operation, if injudiciously carried into practice, the most lamentable and disastrous results. A profound historian indulging in some reflections upon the American Revolution, makes the following observations. ‘To overset an established government, unhinges many of those principles which bind individuals to each other. A long time and much prudence, will be necessary to reproduce a spirit of freedom, without which, society is a rope of sand. The right of the people to resist their rulers, when invading their liberties, forms the corner stone of American Republics. This principle, though just in itself, is not favorable to the tranquility of present establishments. The maxims and measures, which in the years 1774 and 1775, were successfully inculcated and adopted by American patriots, for oversetting the established government, will answer a similar purpose, when recurrence is had to them by factious demagogues for disturbing the freest governments that were ever devised.’

It should not be overlooked, though it may seem to imply a contradiction in terms, that the strict enforcement or assertion of our most perfect rights, under peculiar circumstances may sometimes constitute a crying sin, as being a violation of some duty, which though of the strongest obligation in a religious and moral point of view, is usually called or defined a duty of imperfect obligation, because those persons who are the objects of it, have no right themselves to compel its performance. This is true in relation to our rights in a state of nature, and towards individuals; and is equally so in relation to our civil and political rights in a state of society, and towards the public. But, in the latter case, the consequences may be infinitely more disastrous, and wholly remediless. The following remarks are to be taken, subject to this qualification.

No government can have any legitimate foundation but in the good of the people; for, the people were not made to be governed for the interest or pleasure of the rulers; but rulers were set up and established to protect the people, and direct them by salutary laws and regulations, in the pursuit of their welfare and true interests. Where the people have good sense, and the virtues of self-denial, and the love of justice, as a nation, so as to know how to redress their wrongs on other nations, if any should be offered, and so as to be contented to do without, what they cannot gain without wrong to others, they have no need of arbitrary rulers, whose powers, in a political point of view, originate with themselves. But, if they have not this good sense and these virtues, they will soon fall a prey to usurpation, as a punishment for their folly and injustice. What nations have, and what nations have not, this intelligence and these virtues to a sufficient extent, may be conjectured, but can only be certainly determined by experience. To think so, and to be able to do it, are different things. To overthrow a monarchy is one thing; to establish a permanent, free, popular government is another. The characteristic qualities of a people, which may lead them to the former, are not of themselves sufficient to enable them to effect the latter. The form of general government established by American sages, though most admirable, is not perfect; and will stand no longer than while a portion of the same wisdom, patriotism and disinterestedness, which actuated them, shall continue to animate the public councils.

Governments were established at first, in days of ignorance violence and injustice. In most cases the strong, crafty and bold, reduced the weak, timorous, simple and defenseless to a state of subjection. The latter, in this way, became slaves to the former, in the first instance; and afterwards, by a gradual melioration of their condition became subjects, while the companions of the leader or conqueror, became nobles. This however was not always the, case. For, in some instances, it is probable, where the weak were not immediately overrun in the first invasion, they were .able by uniting and forming themselves into an organized society, adopting an exact military discipline, and inventing armor as well as improved weapons of offence, as shields, darts and swords, to prevail over those, who, relying merely on their gigantic stature and resistless bodily strength, had never felt the necessity, and consequently had never thought of any such expedients, but at best, had never made use of any weapons more effective than the stone, the stake, or the war club. It is most probable, that it was in this way, that Chedorlaomer, the first conqueror on record, subdued the various tribes of giants, enumerated in the holy scriptures. For, he had no divine assistance, and no mention is made of the superior stature of his soldiers or subjects. But they dwelt in cities, and must therefore have made some considerable advances in civilization and the necessary arts. But the nations or tribes whom he conquered, it is apparent, lived in a savage state; and were most of them conspicuous for their lofty stature; viz. the Emims, who are compared to the sons of Anak, of whom it was said, ‘Who can stand before the Anakims,’ the Rephaims, or giants, of whom it is said in the scriptures Og, the King of Bashan, was the last survivor, and whose stature, according to the scripture account, could not have been far from fifteen English feet; the Horims, who dwelt in caves and holes in the ground on Mount Seir, and who, in this respect, were literally Troglodytes. These giants were in a great measure destroyed by Chedorlaomer, and it is most probable without any miraculous aid, by superior weapons, and military skill alone. But, when other nations of gigantic men succeeded, such as the Anakims and the Amorites, who were acquainted with warlike implements and defensive armor, and subject to military discipline, it was impossible for the Israelites to conquer them without divine assistance, and the three sons of Anak, who struck terror into the hearts of the Israelite spies, with the exception of Caleb and Joshua, it is probable from the same account, were not cut off, until they were upwards of fourscore years of age; there being no evidence that, under the divine economy, the ordinary course of nature is ever disturbed by a miracle without necessity.

In later times, governments are chiefly grounded in the first instance on conquest or usurpation. For we see in history, Kings are dethroned and are succeeded for the most part by tyrants; Republics are conquered through delay or dissension, or corruption, and are annexed to the empire of the conqueror; monarchies are subverted and succeeded by anarchy and confusion, until the turbulent authors are cut off, one chief being left to trample on the people’s liberties and reduce them to a more abject state than they suffered before. In a few. instances, the people have rescued themselves from oppression, and have established a mild and free government.

Legitimate governments may be of any form whatever, whether a monarchy, an aristocracy, a democracy, or a combination of these. Where they are not established by divine appointment, they must be grounded, according to natural right, in the will of the people, express or tacit. A people, therefore, it is evident, without any government, when organizing a political society and forming a nation, may adopt any form of government which they think expedient, whether monarchy, aristocracy, democracy, or a republic. Whatever form they adopt, is a legitimate government, and no individuals in any succeeding generation, have a shadow of right to attempt to subvert it, or to excite the people to do so. Yet individuals who are dissatisfied, have a right to consult their happiness and leave the country; but so long as they reside within it, they are bound to obey the laws. But, if the rulers should abuse their legitimate authority, and oppress the people by acts of tyranny and cruelty, the people, after petitioning for redress of grievances in vain, if unanimous, (otherwise not,) will have a natural right to remove their rulers, choose others in their room and reform the government, and adopt a new constitution if they see fit. A bare majority of the people, however, has no such right.

This extreme right, on account of the terrible consequences usually attending its exercise, notwithstanding the most tyrannical and unjustifiable conduct in the rulers, in most cases it would be very wrong, indeed a great sin, to put in force. For, the benefits resulting from revolutions, seldom compensate for the horrors which almost invariably attend them. The risk of violating many duties, which, though of imperfect obligation, cannot be disregarded without incurring a degree of guilt and responsibility, proportional to the calamitous consequences which must necessarily follow, must therefore make every reasonable and conscientious person pause and deliberate long, before he arms himself against his rulers; and it is very probable, that it is in part for such reasons, that we christians are commanded ‘to submit to the powers that be. But, in fact, the people are seldom or never unanimous for a change of their government, even when it is of the most arbitrary form, and their rulers are tyrants. Where they appear to be so, (and especially if the administration is mild, and the people do not stand in awe of it,) it is owing to the dread and fear which the orderly citizens entertain of the threats, outrages and massacres of revolutionists and anarchists, which are greater than the respect or regard, which they entertain for a government, in their opinion no longer capable of protecting either them or itself. Many of these citizens, therefore, in such cases, through mere apprehension, side with the unprincipled and disorderly, in order to escape their violence, (though being suspected, on account of the previous respectability of their characters, their hypocrisy is not always successful in this respect,) when they would prefer to submit to the measured oppressions of any regular government, rather than be exposed to the capricious and illimitable envy and malignity of ignoble and unprincipled disorganizers. There is seldom, therefore, an occasion where such right can be said to exist at all; and it would be a rare case indeed, that would render the exercise of it perfectly justifiable.

In the original formation of a government established by the people, it is their consent which renders it legitimate. But, though the government should commence unjustly, as by conquest or usurpation, yet, if the people afterwards acquiesce in it, no succeeding generation has any greater right to alter it, than if it had been established by the free consent of the people in the first instance. For, the generation which acquiesces, have the same right to adopt the government under which they live, that a people without a government, have to form and establish one. The voluntary acquiescence of the former, is equal in its effects to the free choice of the latter. The contrary supposition would be attended with many inconveniences, if not absurdities. For, suppose a democracy is established by the free choice of the people, what sanction has this government, after the generation has passed away, which first established it? Certainly none but the tacit acquiescence of the people which succeed. In any such case, can we suppose that a political leader has a right to endeavor to persuade the people that their rulers oppress them, and, in this way, induce them to resist, throw off, or dissolve the government? For, without dwelling upon the probable consequences, mobs, riots, insurrections, rebellions, civil war, massacres, and other outrages, with which the overthrow of a settled government is invariably attended; and the anarchy and confusion, and suspension of the distribution of justice, which immediately follow ; and the establishment of a military despotism, which would in all probability be the termination, and the only effectual one, of these horrors; whence could a demagogue derive this right? Can such a pretense owe its origin to any other source, than an abuse of the great liberty which is permitted in a democracy; but which in a stronger government, would well be considered as a crime of the greatest magnitude and atrocity, and which would immediately be punished as it deserved ; or rather would rarely show itself, having no hopes of escaping punishment in case of a failure in the attempt. For, the confident expectation of escaping with impunity, is the chief origin of the fervid and inflammatory declamation against imaginary political evils and abuses, in the pretended patriot and lover of the people, as well as of the lawless violence of an ignorant and debased rabble, under the influence of intoxicating liquors, and in the exercise of, what they affect to believe, some of the rights of man.

When in the first formation of a constitution, a mode of amending the frame of government is pointed out in that instrument or political compact, all amendments and reforms made in the mode prescribed, though not unanimously agreed on, are doubtless as valid and binding, as if they constituted a part of the original compact, to which all the people had unanimously assented in the first instance. And here it will make no difference, whether agreeably to such mode of amendment, the alterations in the constitution are to be made by the rulers themselves, or by the people convened in their primary assemblies. But, as the majority have no natural right to frame a government in the first instance, which shall bind the minority who dissent, though the minority may silently ratify it by their peaceable acquiescence, if they see fit; it follows that a mere majority have no right to alter the constitution, unless it is expressly agreed that they may do so in the mode prescribed for that purpose in the constitution itself. It seems to follow, therefore, that though the people, if unanimous, have a right to change their form of government, even Where there is no provision for any such alteration in their constitution; yet, the rulers may justly enact laws to punish with exemplary severity, any persons who should attempt to excite the people to make radical changes in the government, or to remove, in an irregular and disorderly manner, those who preside over the administration of public affairs. This authority naturally results to the rulers, from the general power which is bestowed on them, either expressly or by implication, to provide for the public safety and welfare; and the exercise of it is justified, not only by the bad motives which usually actuate innovators, such as disappointed avarice, or ambition, envy, vanity, and a desire of self-aggrandizement; but, because of the infinite evils which attend an attempt to overthrow the government, where the people are divided into parties or factions, as they invariably are on such occasions.

Farther; if it were permitted to individuals to excite the people to overthrow their government, or change it in an irregular manner under the plausible pretext of reform, then nothing could ever remain sacred or established among mankind. It can make no essential difference, what the form of government may be, which it is desired to overthrow. Yet, it is certain, that where the form and administration of the government, is most arbitrary and despotic, and consequently where there will be the most just ground of complaint, there will be less of it made, through fear. On the contrary, where the government is most free, and there is consequently less danger of punishment for seditious or treasonable practices, unprincipled demagogues, from a desire of becoming popular, will pretend public abuses where none exist, and exaggerate those which do. Not but that there are tyrannical abuses of authority in democracies and republics, as well as in monarchies; but for the most part, they excite less apprehension and alarm in popular governments; because in them the power, however it may be abused, is supposed to be limited, and the evil consequences of such abuse, are definite and circumscribed. But in monarchies, where the political power exercised by the ruler is either arbitrary, or, at least very great, the abuse of it excites alarm ; because the extent of the abuse, or of the evils that may be occasioned by it, cannot be either distinctly perceived or foreseen, or precisely ascertained. It is for this reason, that, under the government of an arbitrary tyrant, there is no one but must entertain apprehensions for his own personal safety. Yet, for the most part, timid and conscientious persons, are desirous of a strong, though not of an arbitrary government. Because, from its very structure, a strong government is most likely to be permanent, and they consequently feel a greater confidence that they shall be protected from the innovations, abuses, and violence of the turbulent and disorderly. On the other hand, the unprincipled, dissolute and flagitious, always desire a weak government, in order that they may be at liberty to practice wickedness with the greater hope of impunity.

Where the form of government is strong and effective, the just and peaceable therefore, enjoy the highest degree of that rational liberty which consists in the security of their persons and property, and the quiet and undisturbed exercise of all their civil and political rights, free from the molestation of the turbulent and licentious. On the other hand, where the form of government is weak and tottering, and the rulers, from a desire of popularity, neglect a discharge of their duty, and are consequently timeserving and inefficient, the turbulent and unjust enjoy the highest degree of freedom and impunity in their insolent practices of fraud, violence and imposition upon those, who hare not the power to protect themselves, and, whom, the rulers through an apprehension of a loss of popularity, are base enough to leave unprotected. For, flagitious and disorderly persons dislike wholesome laws, because they find their freedom to commit wrongs with impunity, is restrained by them. They therefore make an outcry for liberty, and for a repeal of such laws. But laws to prevent wrong and injustice do not deprive well disposed persons of any freedom; because they would do no wrong and commit no crime, if there were no law against them. They therefore are in favor of such laws, to protect society and themselves against the lovers of such liberty. And as the good, who alone may safely be entrusted with such freedom, i. e. a state of exemption from such laws, never complain for want of it; so, those who do complain, are the very persons in whom such confidence cannot be placed.

Lastly; though it cannot be doubted, that where all the people are unanimous, they have a natural right to alter their government, whether any provision for such alteration is made in their constitution or not, because the government is intended for their benefit, and, if they had not such right, the most horrible tyranny, cruelty and oppression might be continued from generation to generation, unless there were some miraculous interposition of providence; still the wise and prudent will be very cautious how they engage in any such enterprises; some of which, seem to have been signally marked with the divine displeasure. The reader will readily recollect that the same nation, which dethroned and beheaded Charles I, a legitimate monarch, under pretence that he had made use of an unwarrantable stretch of his regal authority, which however was not well defined, was compelled to submit to a bloody usurper and ruthless tyrant, who died peaceably in his bed. And here the sturdy republicans of parliament, who had deprived the nobles of their constitutional authority, and who made it almost a matter of conscience to withhold due reverence and respect from their lawful sovereign, were compelled by Cromwell, both a republican and a fanatic, and as bloody and ferocious as themselves, but far superior to them in ability and decision of character, to bow their necks before him with servile fear; yet, after all, were thrust out of parliament by him with the utmost scorn and contempt.

What massacres followed the decapitation of the mild and benevolent Louis XVI? What a succession of demons afterwards controlled the public affairs of France, who, deluding the infatuated people with the ceaseless, false and senseless outcry and jargon of liberty, equality, the rights of man, tyranny, priestcraft, aristocrat, democrat, citizen and patriot, never hesitated to violate every precept of religion, every moral duty, and every feeling of humanity, and carried their extravagance to the height of the most blasphemous impiety. Were the horrors, which thus succeeded to the overthrow of this established government, a judgment from heaven, or were they merely the natural consequences, which may always be expected to flow from the prevalence of anarchy, atheism, and unbounded licentiousness? Certainly, no tyranny can occasion such evils, as an intoxication of the intellect, arising from an influx of false principles on the subject of religion, morals and philosophy.

Well-disposed men therefore will hesitate long, before they join in any attempt to overthrow or revolutionize their government, under any pretext whatever. It is true the people may be unanimous in subverting their government, and yet afterwards, they may not be able to agree in forming a new one, and, if so, they will be in a much worse condition, than they were in, under that which they have rejected; because, to destroy is not the same as to reform. Will it not be worse than living under any regular government, to remain in a state of anarchy and confusion, until the different parties and factions, are reduced by battles, massacres and assassinations, under one; and another government is established by force or fraud, ten times more arbitrary and despotic than that which they have been induced to overturn? For, in many cases, revolutions do not result so much from a sense of intolerable oppression, as from a fondness for an idol—a golden calf—a false god—an imaginary degree of liberty, which, if it were real, the frailty, perverseness and folly of mankind, to say nothing of their wickedness, injustice and depravity, wholly disqualify them from enjoying.

1. Such conduct is perfectly natural, when it is considered, that demagogues and false patriots are actuated by the same motives, as the courtiers and flatterers of kings. For, it is to power, wherever placed, that each class equally bows. In monarchies, they are induced to pay court to the opinions and wishes of the king, if they would rise to employment in the state. With the same object in view, in democracies, they suffer neither honor, conscience, truth, justice, decency, nor religion, to stand in competition with popular notions, prejudices, or selfish interests. With such, the voice of the people, right or wrong, is the voice of God; and whatever is unpopular, is unpardonable. If they have sagacity enough to foresee in what direction the majority of the people will incline, it is there such persons will always be found, justifying or recommending in advance, measures which the people would blush to commit individually, as private citizens; and, instead of using the information which a superior education has given them, in endeavoring to remove popular errors, mistakes and prejudices, and settling the public opinion on true principles of religion, justice and morality, prostituting their superior advantages and influence, in confirming such errors, opinions and prejudices, rather than incur the risk of the displeasure of the people, by attempting to set them right.

Continued from RIGHTS OF AMERICAN CITIZENS: General Rights; Division One

Continued on CHAPTER II  Of the Social Compact of the Citizens of the different States in the American Union, in the formation of the General Constitution, taken in connexion with the real or supposed compact of the citizens of each State, in the formation of its own Constitution or State Government.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

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RIGHTS OF AMERICAN CITIZENS: General Rights; Division One

The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832


CHAPTER I. Of the rights of Man, as derived from his nature and condition.

Division I. Of natural rights in general. Sec. I. Of the right of self-preservation.—Sec. II. Of liberty, or freedom of action.—Sec. III. Of natural equality.—Sec. IV. Of freedom of opinion and the rights of conscience.—Sec. V. Of the right of property.—Sec. VI. Of the right of self-defense.—Sec. VII. Of the right of protecting property.—Sec. VIII. Of the right to redress or reparation for wrongs and injuries.— Sec. IX. Of the pretended right of war.—Sec. X. Of the right to form associations and organize society.

eagle.with.flagThough man is a being evidently designed for society, and the greater part both of his various rights as well as duties, depends upon the relations which he contracts through the medium of social intercourse; yet, it will facilitate a distinct understanding of those rights and duties, to examine what rights he must necessarily be considered as having in relation to the rest of mankind, without any reference to those which result from organized society.

The only sure foundation of all right, is the will of the great Creator. Independently of this, men could have no ground to complain of wrong or oppression in any case, because their relation to each other would be that of brute animals, among which the strong and ferocious devour the timid and weak, without pity or remorse. It would be the same with men; because, having no other aim than self-gratification, and knowing no other restraint upon their actions than the want of power, whatever each individual found himself able to do, he would do without regard to any other consideration, than his own advantage. And thus the world would be filled with antediluvian violence. Such is the direct tendency of Atheism; and it is on account of this tendency, as well as its impiety, that, it is held in the utmost detestation among reflecting men. Those persons, therefore, who having no settled or distinct notions on religious subjects, affect Atheism, in order to give themselves importance with the rest of mankind, by a pretended disbelief of the evidence of their own senses, if they were capable of understanding it, as well as of other evidence, which they have never examined sufficiently, err greatly to their own prejudice. For, they expect to excite admiration for the strength of their understandings, which, as simple people believe, sets them above vulgar prejudices, and frees them from the bugbears and restraints of what they term priestcraft, bigotry and superstition. But, the real consequences are, that, if sincere, they are pitied for the imbecility of their minds; but, if insincere, they are despised for their hypocrisy. If they boast of such opinions, their vanity is laughed at; if they attempt to make proselytes of simple persons, the ignorant, and novices, they are abhorred by people of principle. What, perhaps, is of much greater consequence in their own opinion, their oath is rejected as unworthy of belief in a court of justice, and they are trusted by nobody. Not by a prudent man, because honor is a base currency not by any means at par with religious principle; not by each other; because they know each other too well. Since there is nothing to deter them from anything which they think for their interest, but the fear of detection, exposure and loss of character.

The following particulars, derived from the sacred scriptures, which contain satisfactory evidence of divine revelation, constitute, as it is believed, a sufficient foundation for all the rights and duties of mankind, whether towards the great Creator, or towards each other. 1. That man was created a rational and accountable being, and that the dominion over the earth and all things in it, was given him. 2. That the whole human race are derived from the same first parents, and consequently, however various in stature, complexion, intellect, morals or civilization, they are all brethren of the same family. 3. That the Creator has given men a conscience to distinguish between good and evil; as also, certain moral and religious precepts for the regulation of their conduct, as well with regard to themselves as towards each other; the substance of all which is, to do justice to all men; to walk humbly before God; to be holy, and avoid every species of impurity and excess.

From this concise statement of so much of revelation as immediately relates to the subject of the present chapter, it is apparent, that all the rights, which men may justly claim to exercise or enjoy, and all the duties which they are bound to perform in relation to each other, are derived from the will of their Creator, either as necessarily to be inferred from the nature which he has bestowed upon them, and the condition in which he has placed them; or, as manifested in those express declarations of his will, which are contained in the revelation or dispensation, to which reference is made.

Some of the more important natural rights, i. e. such as a man may claim in relation to the rest of mankind, but independently of organized society, or any of its positive regulations, may be found in the following enumeration.

Sec. I. The right of self-preservation. As men have their existence from their Creator, as his gift, it follows that he alone has a right to deprive them of it. Consequently no man or body of men, whether organized into a society, or living in a state of nature, without any regular government, has any right to deprive any individual of his life, unless in obedience to the will of the Deity; whether it consist in some particular express command, like that given to Joshua, by virtue of which the different nations of Canaan were destroyed by him; or, in some general direction given to men, requiring them to punish certain crimes with death as often as they occur. Except in these two cases, therefore, every individual of mankind, has a natural right, to defend his life against all who may attack it; and in his own defence, it seems, may use any means whatever, which may be necessary for that purpose, even to the destruction of the lives of his assailants, if he can save his own life in no other way. But, it will be difficult to make out any pretense of right in any person, even for the preservation of his life, to inflict any injury, however small, upon an innocent individual. For, necessity has no dispensation to commit injustice. The proverb, ‘necessity knows no law,’ seems therefore to be misapplied, when it is used to justify whatever a man may do for the preservation of his life, though accompanied with the greatest injury to a third person. The true doctrine on the subject, is believed to be, that such extremity, though it may be urged in palliation of the wrong, can never be considered as a complete justification where the necessity is merely moral. Where the necessity is physical, it is admitted, that there can be no guilt or accountability, either in ethics or at law, in the immediate agent; but the person imposing the necessity is alone answerable. What a man does for the preservation of his life, is done under a moral necessity. This can be no excuse therefore for any injury done to a third person. Still, if such injury is inconsiderable, and admits of compensation, the person under such moral necessity, may so far presume upon the benevolence of others, as to suppose that they will be willing the act should be done for the preservation of human life. But this is true, only where there is no opportunity of asking permission; for the act cannot be justified if expressly forbidden. For, though self-preservation is the first instinct or dictate of nature, it must always remain in subjection to the will of its great author. The true construction of the expression, ‘necessity knows no law,’ seems to be, that, where a man’s life is in danger, the fear of immediate destruction takes possession of his imagination so entirely, that all distinctions of right and wrong, are wholly forgotten; and whatever the instinct of self-preservation prompts him to do, he performs, regardless of every thing else. In any other sense, the expression is only true in part. The true distinction would then be, that with regard to things, which in their own nature are indifferent, but which the laws of organized society have prohibited, from motives of mere policy or expediency, a man may do them, if it is necessary for the preservation of his life. But, with regard to those things which are wrong in their own nature, whether prohibited by the laws of society or not, this proverb affords no just criterion; because no necessity which is merely moral, can justify their commission.

Sec. II. Of liberty or freedom of action. As man is endowed with certain powers and faculties, by his Creator, who has also laid certain express or implied restrictions upon their use and exercise, it may reasonably be inferred, that, subject to these restrictions, a man has a right to do agreeably to natural law, whatever he has a power to do. But, as the meaning of this brief expression may be mistaken, to guard against any misapprehension that might arise on this subject, it may be stated more precisely, that, in a state of nature, a man may rightfully do whatever he has it in his power to do, provided that it is not inconsistent with the dictates of religion or morality, i. e. incompatible with his duty to God, or to any of the human race.

With relation to the rest of mankind, a man has therefore a natural right to the free and unmolested use of all his powers and faculties, so far as they may be exercised without infringing the equal rights of others. But, where no individual can set up a peculiar right to a thing, exclusive of that, which others may equally claim, he will have no right to do any thing, by which the exercise of their rights may be taken away without their consent. In any such case, mutual forbearance is the single alternative of mutual concession.

Of this natural liberty or freedom of action, subject to the limitations just suggested, no man, while living in a state of nature, can justly be deprived by any other man or body of men whatever. For, that cannot properly be called a right, of which a person may be deprived by others, without his consent. Besides, no man can have any right to control another, unless it is given by nature; as, in the case of a parent and child, where a parent has a right to control the child until it is old enough to provide for and protect itself, at which time it seems to be set free by nature; or, unless the submission to the control of another, is voluntary in the first instance, as, in the case of a female, who by marriage puts herself in subjection to her husband, and under his protection. This natural liberty arises necessarily from—

Sec III. The natural equality of men as to their rights. All men are by nature equal as to their rights. For, they are all of the same family; and, though they differ in their natural qualities and endowments; yet, there is no evidence that it is the will of the Creator that one should rule over another, unless the mere happening of a thing can be used as an argument to justify it, which would equally justify every species of acknowledged wrong. It will be difficult, therefore, to make out any natural right, by which the strong, the beautiful, the fair complexioned, or even the wise, may justly compel the subjection of the weak, the ugly and deformed, the dark colored, or the ignorant and foolish. For, among men, right always depends upon justice, equity and equality; and never upon force, fraud or cunning, or wisdom perverted to a selfish purpose. If no superiority of natural endowments can confer a right to subject others to its control, no casual concurrence of circumstances can afford the slightest pretense for any such right. It is not intended, however, to deny that a man, for such consideration as he thinks proper, may voluntarily relinquish to another individual, or to any body of men, whether formed into an organized society or not, any portion of his natural freedom, and consequently may abandon his natural right to equality with them in this respect. For, there appears no sufficient reason to doubt, that, in a state of nature, a man may bind himself to serve another, either for a certain length of time, or even during his life, and in this way come under an obligation to obey all his master’s commands in all things within the agreement for service, unless they involve the performance of some act of injustice. And, in general, though possibly there may be some few exceptions, the slave will be justified in doing, by his master’s orders, whatever the master would have a right to do in person.

For similar reasons, by the law of nature, a father may justly bind his son to service to a third person, if he makes proper stipulations for the son’s support and education, and the son will be bound to serve such person, as long as he would have been bound to submit to and obey his father; i. e. until he is old enough to provide for and protect himself, at which time the father’s natural right to control his son ceases, and the son is set free; and at that time being old enough to have a family of his own to provide for, he is no longer bound by the law of nature to submit to his father or. to any body else. But, from the duties of gratitude, respect and reverence to his parents, the child is not released by any lapse of time.

Sec. IV. Rights of conscience and freedom of opinion. From the natural equality of men as to their rights, it follows, that no man, or body of men, has any right to control another’s belief or opinion in religious matters, or to forbid the most perfect freedom of inquiry in relation to them, by force or threats, or by any other motives than arguments or persuasion. Suppose, for instance, a missionary were to be so absurd as to attempt to compel a conversion to the Christian faith by establishing an inquisition among a heathen people, and punishing with death all those who refused to make a profession of faith; this would be no less an infringement of the natural rights of the natives, than it would be disgraceful to the great and most praiseworthy cause of heathen conversion. For, nature has given no man a commission to inquire into and control another’s belief in this respect; and the divine revelation authorizes the use of no other measures to bring the unconverted to a right belief, than those of instruction and persuasion.

Yet, in a state of nature, a man might justly expel from his household, any person who entertained a different opinion from himself on religious or any other subjects, on the supposition that he was under no other obligation to retain him in his family than the imperfect duty of hospitality. Is there any christian, that would consider himself as doing wrong, if he excluded from his family, an Atheist, a Mahometan, or an open scoffer at revealed religion, though such person to all appearance possessed a fair character and irreproachable morals? Certainly not. For, to wait and see if the guest attempted to spread his own false doctrine, or corrupt or undermine the principles of his host’s family, would be merely gratuitous, and the guest could have no just cause of complaint, if such an opportunity were withheld. Since the attempt might be successful in the first instance, and after the contagion were once spread the mischief might be irreparable. For a similar reason, in a state of nature, every man has a perfect right, however illiberal the exercise of it may be, to choose to employ such individuals only as entertain opinions on any subject in accordance with his own. And any individual, who may be rejected from such employment on account of his opinions, will have no just cause of complaint; because the other is under no obligation to employ him at any rate, unless he has agreed to do so. But, it is obvious that no agreement can justly be dissolved for any such cause, unless it forms part of the agreement itself.

What natural right, then, it may be asked, does a heathen prince infringe, who refuses to permit a Christian missionary to reside within his territory, because he ignorantly supposes that the diffusion of the Christian religion may be injurious to his people? Certainly none. The guilt he incurs is that of rejecting the gospel, for which he is answerable to its great author from whom it proceeds, but to no earthly tribunal. But the missionary, personally, has no just cause of complaint, if compelled to leave the country, without other ill usage, because it is presumed, he is not on his own errand, but, in a qualified sense, is a messenger of his divine master.

Sec. V. Right of appropriation, and property. The foundation and true origin of the right of property seem to be, that the usufruct [A Civil Law term referring to the right of one individual to use and enjoy the property of another, provided its substance is neither impaired nor altered] of the earth, and its various products and contents, was originally given to mankind in general; but, with the exception of certain grants made to one or two particular nations or tribes of men, which are mentioned in the Old Testament, no particular territory appears to have been assigned by the great Creator, to any particular individual or nation. It seems to follow, that every individual as well as nation, has by nature, a right to appropriate to his or their use, so much land or territory, wherever it may be found not appropriated by others, as the individual or nation has occasion for, and can actually occupy, without any other right or title, than what arises from the mere act of appropriation, by taking possession and keeping it in actual occupation. For, if any person could have any right to turn out of possession a prior occupant, it would infer some natural superiority of right in such person over the occupant; but this would obviously be an unfounded pretension, unsupported by any evidence whatever. But, if, by taking possession, an individual excludes the rest of mankind, so long as he retains it; then, it is evident, that if he should always retain the possession, he will always be entitled to the usufruct of the land exclusive of others; which limited property seems to be all that ever was intended by nature. And therefore if he should abandon the possession of the land, it would be again reduced to a state of nature, and consequently would, in like manner, again become the property of the next occupant in succession, and the former occupant would lose all right to resume the possession. This however would hold good in those cases only, where the first occupant intentionally abandoned the possession, or voluntarily relinquished it to another.

The manner in which property would be transferred to a purchaser, or transmitted to a descendant or other kinsman, so as to make him an heir, may easily be deduced from this view of the subject. For, in a sale of land, the occupant or owner would merely deliver to the purchaser, that possession, upon which alone his right of property depended, and the purchaser from that time, would have a right to retain the possession against all the rest of mankind. If the owner of land was desirous, that his son should inherit it after his death, he would take care that his son should be the first occupant after that event took place; for, otherwise the son could have no natural right to what had been in his father’s possession when he was alive. The obvious reason is, that the son could have no greater right than his father had, whose right would have ceased when his occupation ceased. Consequently when the father died, if the possession were then vacant, it would go to the next occupant; or, if the father had put the son in possession previously to his own decease, the son as occupant and owner would have a right to retain it.

It has been supposed by some, that, while living in a state of nature, an individual, having occasion to make use of any natural product, not previously appropriated by any other person, could not rightfully appropriate it to his own use, without the express or tacit consent of the rest of mankind. For, they consider the earth and all its products and contents, as intended by nature, as a joint stock for the general sustenance or other benefit of the whole human race. But, this opinion, it is believed, is erroneous, and such as if traced through its necessary consequences, would lead to great absurdity. For, if this opinion were well founded, then every person born, or to be born, would have a right to claim a portion or proportional part of all property on the face of the earth, on the ground that by nature, he had a rightful interest or share in it, which he had never relinquished. A further consequence would be, that no one could justly claim an exclusive property in any thing; and thus men would derive little or no benefit from the bounty of their Creator. But, in fact, there never was any such general community of properly among all mankind. The true views of the subject, it is believed, may be illustrated, by considering the natural products of the earth, as well as the surface of the earth itself, in the same situation in this respect, as the waters of a river, which, though intended by the bounty of the Creator, as a joint provision for the necessities of all mankind, indeed of all creatures, living near enough to have access to it; yet, is by no means to be considered as a joint stock; because no individual that does not make use of its waters can have any interest in it. But, it would be quite otherwise, if it were a joint stock. And therefore, in a state of nature, where a man goes to the bank of a river with a vessel to draw water, and takes out such a quantity as he has occasion for, as soon as he has separated it from the rest of the water in the river, it becomes his, by this simple act of appropriation. For this purpose, it is not necessary, that he should ask the consent or permission of any individual, or of the rest of mankind. Because though every one has a right to take what he wants; no one has a right to forbid others to do the same. Consequently, in any such case, no one has a right to interfere and deprive another of what he has thus appropriated to himself, without some better ground than because the appropriation was made without the consent of the rest. For, the only ground for the right of property in relation to things furnished by the bounty of nature, is the mere act of taking and keeping possession, taken in connexion with the circumstance, that no one else has a better right, and consequently can have no right to defeat that possession. For, the mere act of one man cannot deprive another of any right that he has. To illustrate; when A dips his vessel in the river, B has no right to prevent him from drawing up water; because, though B has an equal right, he has no exclusive right to the water of the river. A therefore interferes with no right of B, because B when he pleases, may do the same. Yet A has no right to any particular portion of the water, before he appropriates it by filling his vessel; for, if he had, then B would have no right to take that particular portion, supposing it possible to distinguish it beforehand, though A did not. But, each having an equal right, and neither an exclusive right, he who first fills his vessel with it, obtains a right of property in it. But this right has no other foundation, than the want of right in any other person, to deprive him of what he had thus appropriated.

It would be a false deduction from these principles however, to infer that an individual has a right to appropriate to himself by the mere act of taking possession, the whole of what was intended by nature for the common use of mankind, or of so many as might from nearness of situation, derive an advantage from it. For, in any such case, no man has a right to appropriate any more than he has occasion for. It is true, as long as the supply is abundant for all, no one would have a right to complain, that another engrossed or consumed more than his occasions required. But, as soon as there was a deficiency, any one having occasion for a supply, would have just cause to consider himself injured, if the supply should be prevented by such wrongful appropriation. To illustrate; by the law of nature, any one would have a right to take from the river whatever quantity of water his occasions required; but he would have no right to divert the channel, because, in this way, he would do a general wrong to all those who were thus deprived of the use of its waters. And in general, where a thing is intended by nature for the general use of mankind, the attempt or claim of an individual to appropriate the whole of it to his own use, is wholly unjustifiable, and if he compels others to submit to it by force, will be an act of mere usurpation. For, in any such case, by the law of nature, every individual, previous to the organization of society, who has occasion for a supply, will have a right to disregard this act of appropriation, and take to himself, out of what is thus so unjustly engrossed, so much as he has occasion for, but no more.

This view of the subject wholly sets aside the right of necessity, which is supposed by some to supersede the right of property. For this right of necessity rests, as it is pretended, on the principle that no man can appropriate any thing, without the consent, express or tacit, of all mankind; and that, as no man would have given such express consent, if he should thereby reduce himself to a state of extreme necessity, there can be no ground to infer a tacit consent in any such case. The case of extreme necessity must therefore always be excepted, it is pretended, in all cases, where an individual seems to acquiesce in silence in any such appropriation by others. The necessary consequence of such doctrine, however, would be, that in any case of such extreme necessity, a person would have a right to demand, that those things which have thus been appropriated by others, and which are necessary to relieve his necessities, should be thrown into a state of nature again; or, agreeably a phrase of proverbial use in the law, should be brought into hotchpot, [Legal term meaning: The gathering together of properties to ensure an equal division of the total for distribution, as among the heirs of an intestate parent.] so that he may have a share, or, at least, so much as may be absolutely necessary to preserve his life.

But as a person, subject to the restriction before suggested, that he does not engross the whole of any thing of a general nature, may appropriate to himself, without any one’s consent, any thing not previously appropriated, this foundation for the pretended right of necessity, wholly fails; and, it is believed, a single case cannot be put, in a state of nature, where a man has a right to demand a portion of another’s property, on the mere ground of extreme necessity in himself. A little consideration will plainly show that no such right can exist. For, if when a man falls into want, he would by the law of nature, have a right to appropriate to himself, the goods of others, so far as his wants should require, without asking permission, the essential nature of property would be entirely destroyed. For, property consists in exclusive appropriation. But there can be no such appropriation, if the things appropriated are always liable to be taken away by the claims of the necessitous, not as matters of charity, but as yielding to a superior or paramount claim, which cannot be resisted or denied without injustice, and which the necessitous may make with propriety, and without shame or modesty. If this were so, the virtues of benevolence and charity would wholly cease; and there would remain no room for the exercise of any other virtues in this respect, than justice and equity, which, consisting in the exact fulfillment of all duties of perfect obligation, are rather strict duties than virtues.

In a moral point of view, it obviously can make no difference, whether the necessitous individual has sufficient power to enforce his claim or not. For, if it is his right, the person having a superabundance will be morally bound, to furnish the necessitous person with a sufficient supply, as a debt, and not as an act of benevolence or humanity, though he may have sufficient power to resist such demand.

The following imaginary cases may serve for the further illustration of what is believed to be the true doctrine in relation to this subject.

1. When Abraham separated himself from Lot, suppose that he had traveled with his flocks and herds to an extensive valley, one tenth part of which he could not actually occupy, with all his shepherds and herdsmen, and his and their possessions; now, if any other individual had found it for his interest to remove into the same valley, it cannot be doubted, that he would have had a perfect right to appropriate to himself any land not previously appropriated, notwithstanding any claim that the patriarch might set up to the whole of it, unless he had some higher title to it, than such as he might derive from his mere act, or rather attempt, of taking possession of the whole. Because, as has been already suggested, no individual has a right to appropriate to himself the whole of what was designed by nature for the use of mankind in general, unless he has a real occasion for the whole.

2. Suppose a person to be in a state of extreme want, and without any fault of his own, is unable to earn or beg sufficient food for his sustenance; can it be believed for a moment, that these circumstances throw all property into common stock, so far that he has by the law of nature, a right to take sufficient from any one however superabundant his store, to supply his necessities, without permission, and though it is expressly denied? If distress has a right to relieve itself in this manner, whenever relief is denied by others, the request to be relieved becomes a mere ceremony, and where then is the virtue which is supposed to be shown in granting relief? Indeed, in such case why is necessity to be considered an object of pity at all, since it must be merely voluntary, if an individual may relieve himself from it, when he pleases, at the expense of others? It follows, that, even in the case of a man famishing with hunger, he has no absolute right, to appropriate the food of others against their will; whatever mitigation of criminality, extreme distress may furnish.

3. Suppose the inhabitants of some island to be suffering with famine, and a ship arrives with a cargo of flour. In such a case, the rulers of the island will be perfectly justified in taking the cargo into their possession, giving a proper profit to the owner, and leaving with him a proper supply for his own occasions. This right however they will derive from their general power and duty, to provide for the public welfare on all occasions, which this extreme emergency will warrant them to exercise in this way. For, no wrong is done to the inhabitants, because it is presumed the government have authority from them to take all necessary steps for their relief in times of distress. No injury is done to the owner of the flour, both because all property as well as persons coming to another country, are presumed to subject themselves voluntarily to all the laws and regulations of that country, and because, it is taken for granted, that such owner is paid a proper price for his flour. He will have no right to complain, if the government will not permit him, by a detestable monopoly, to extort enormous prices from the suffering inhabitants. For, this would be as unreasonable and unjust, as it would be, if the ship had touched at the island in distress for want of water, and the islanders should refuse to furnish a supply, unless upon a delivery of the whole cargo in payment for it.

Sec. VI. The right of self-defense. The right of self defense against unjust aggression, may be considered as one subdivision of the general head of self-preservation, and has already been slightly touched upon as such, under Sec . I. A view of it somewhat more extensive, will here be taken. Whenever one person unlawfully assaults another, in a state of nature, for the purpose of taking his life, depriving him of his limbs, or maiming, mutilating or disfiguring him, or doing him any injury, from its nature, wholly irreparable, it seems to be generally agreed, that, by the law of nature the person thus assaulted may defend himself to the last extremity, and for this purpose, may resort to any measures of defence, which he may believe to be necessary to defeat the assailant’s purpose even to the destruction of his life. Nor is the person assaulted bound to know the precise extent of the injury, which the assailant really intends. It is sufficient for his justification, by the law of nature, that he believes himself to be in danger of irreparable injury, and that the assailant puts him in apparent jeopardy, and that he has no other known resource by which he can protect himself or escape from the assailant, but by taking his life. For, wrong being infinite in its own nature, until its extent is ascertained by its actual commission, it may not be possible for the imagination of the party assailed, to set limits to the extent of injury, intended by the assailant. And, therefore, if A should draw a sword on B, and make an offer or attempt to kill him, and B cannot escape by flight, or any other obvious expedient, it seems by the law of nature, B will be excusable, if he takes the life of A. And it will not vary the case, in this respect, if in fact A was merely in jest, and only intended to terrify B, if B believed him to be in earnest, and killed him under the mistaken supposition, that he had no other way to save his own life. The reason is, is, that B could not know what limits A had set to his unlawful design. In case of such disastrous consequences, therefore, it would seem, that B must be excused; and A’s blood must rest on his own head for his folly.

For a similar reason, if A should make any such dangerous assault on B’s family, or one of the persons, whom by the law of nature he is bound to protect, B, by that law will have a right to make use of any force, which may he necessary for the defence or protection of such person; and if A is slain in the conflict, and the assault could no otherwise be repelled, and the perpetration of his intended crime could, in no other way be prevented, it would seem by the law of nature, B must be excused. The reason is, that nature does nothing imperfectly; and therefore no other limits can be set to this right and duty of protection, but those which are set by the exigency of the case. For, those persons whom nature has set under the protection of others, she has given them a right to protect effectually; and, if the right to protect, ceases before coming to such extremity, then it would cease at the time when the assailant was most desperate, and consequently when protection would be most needed. But this is obviously absurd. And therefore, by the law of nature, a person may protect to the last extremity, those whom nature has placed under his or her protection.

Sec. VII. The defence of.property. A similar train of reasoning will lead to the conclusion, that, in a state of nature, before the organization of civilized society, every individual will have a right to protect his property; and, for this purpose may proceed to any extremities, that such protection may require. It is true, that the loss of property is not an injury, in its own nature, irreparable, but, as there is no tribunal of justice, in a state of nature, to which an injured party may apply for redress, it must follow of course, that he has a right to prevent the commission of the wrong, by any measures, which are necessary for that purpose, provided always that he does no wrong to an innocent third person. But, because a party injured will have a right to reparation after the injury is committed, which however he will be unable to compel without the use of force, to infer, that he has not a right to use the same force, to prevent the injury, would be unreasonable, especially as there is no certainty, that he will be able to obtain reparation by any means whatever, if he patiently suffers it to be committed. If therefore, one person should attempt to rob another, it cannot be doubted, that, by the law of nature, the party assaulted may resist, and repel force by force, to any extremity that may be necessary to defend his property. And, for the same reason, that a man may repel an assault upon his person, made for the purpose of committing a robbery, he may also, by natural right, make use of any force, that may be necessary, to prevent another from destroying his house or carrying off his cattle by open and direct violence. For, in a state of nature, he has no tribunal to apply to, either for protection or reparation, and must therefore either protect himself, or remain unprotected, and be liable to be plundered without any chance of redress. But, it seems, he would have no right to proceed to such extremities with an unresisting thief, whom he detected in the act of theft.

Sec. VIII. The right to redress or reparation. Where a person has suffered an injury from the wrongful act of another, which is completely terminated, the injured party, by the law of nature is entitled to reparation for the injury, which he has thus sustained. If this is withheld by the wrong doer, he may resort to force to obtain it, doing no injury which is unnecessary for that purpose, and which has no tendency to repair the loss. Thus, in a state of nature, suppose A attempts to take away B’s horse by force, and convert it to his own use, it is obvious that, by natural right, B may justly resist the unlawful act of A, even to the last extremity of taking his life, if he can in no other way repel A and prevent the robbery. But, after A has forcibly taken away the horse, B has no right to take the life of A, because the act is already committed; and taking A’s life, has no tendency to repair the injury or loss, which B has sustained. But B will have a right by the law of nature, to retake the horse from A’s possession, whenever he finds it, and, for this purpose, may proceed to the last extremity, if A should resist, while both are living in a state of nature. The reason is, that the horse still remains the property of B, notwithstanding A’s robbery For, it is obvious, that A can gain no property in the horse, by his own mere wrongful act. A’s possession of the horse being wrongful, B, who has the right of property, may deprive him of it, and may use any measures which may be proper for that purpose, and which A’s obstinacy may render necessary, since A’s wrongful possession can neither confer on A any new right to the property thus obtained; nor take away any former right from B. But, if B cannot find his horse, he will have a right to take A’s horse, or any other property of A, to hold as a species of distress, until A restores the horse, or makes other satisfaction for the wrong, to B’s acceptance. If B can find no property of A, which he can take, he has a right, by the law of nature, to restrain A’s person, -until he makes compensation, if A has it in his power to do so. But, if he has not, then B may justly compel A, if he can without taking his life, to labor for him, until compensation is made. But, though A should absolutely refuse to labor for B, or otherwise make such satisfaction as he has in his power, B has no right by the law of nature to deprive A of life, or mutilate his limbs, or do him any irreparable injury, because this has not the slightest tendency to repair the injury which B has sustained. But B has a right to restrain his person, until he is willing to make full satisfaction, or, at least, all the reparation which he has in his power. Again;—

Where A has done an injury to B, irreparable in its nature, B has the same right of enforcing all the reparation, which A is able to make; but, under no circumstances whatever, has B a right to deprive A of life, or mutilate his limbs, for the reason before assigned, that no such act has the slightest tendency to repair the injury which B has sustained. Again; so long as B is merely enforcing satisfaction, A has no right to resist, until he has voluntarily made, or until B has compelled him to make reparation or satisfaction, either complete, or to B’s content, or all that the circumstances of the case admit. But, after either of these has been obtained, B has no right to proceed to further extremities, and if he should, A’s right to resist will commence, precisely where B’s right to compel or coerce, terminates or ceases.

From these considerations, it is apparent, that where a person has been wronged or injured, whether the injury be capable or incapable of reparation, in its own nature; or whether, from a concurrence of circumstances, he is able or unable to obtain redress, he has no right whatever to inflict any injury on the wrong-doer, either by way of avenging his own wrong, or punishing him; and whether it be done to deter the offender, from a repetition of the offence, or as a warning to others. These various positions will be examined separately. And first, in relation to the right of avenging injuries, and the lex talionis or right to retaliate, it may be remarked, that, by the law of nature, a party injured has no right to demand any higher redress, than complete reparation, which consists in being put in the same condition be was in, before the injury took place. To do a similar injury to the wrong-doer, has not the slightest tendency to this object; and instead of doing himself right, which, in a state of nature, the party wronged is permitted to do, merely because there is no earthly tribunal to which he can apply for justice, he merely commits another wrong himself. The particular direction in Leviticus ‘breach for breach, eye for eye, tooth for tooth,’ it is believed, is not to be considered as a part of natural law, or, as declaring a natural right in the injured party, to retaliate an injury, but is rather to be considered as a direction for the legislator of the Jews, as to the punishments to be prescribed in their laws for certain crimes; or, as a law to be enforced by the judges of that nation, on the offenses comprised within the intent of such command or direction. For, in this way, the offender could never complain of the injustice or inequality of his punishment, when the judgment pronounced against him was, that he should suffer the same evil which he had caused to another. There is therefore no such right at all as that of revenge or retaliation; and to attempt it, seems to be a presumptuous infringement of that prerogative, which the great Creator has reserved to himself, when he says, ‘ Vengeance is mine.’

2. With regard to the supposed right of an injured party to punish his wrong-doer, a similar train of reflections will show that no such right exists. For, all that the party injured can claim in a state of nature, and by natural right, is reparation, which, as has been just suggested, he may compel by force, subject to certain restrictions. The reason is, that all men are by nature equal; but the right to punish, implies superiority on the part of the party punishing; for, otherwise, he could have no jurisdiction over the offence. And though nature, from the necessity of the case, constitutes an injured party the judge of the extent of the injury, for the purpose of obtaining redress, so far as the satisfaction of his own conscience is concerned; yet, the wrong-doer is not bound by his decision even here; and certainly far less when the question of punishment is brought up. As the injured party, therefore, has no power or rightful authority to determine the extent of punishment to be inflicted on the offender, he can have no right to punish at all. The power and authority to punish, must belong to some tribunal, having jurisdiction, which it is very clear can never result to an injured party, from the injury itself alone; since the right to enforce reparation, or to obtain redress, is totally distinct from an authority to inflict punishment.

Whence then, it may be asked, can society derive its right to inflict punishments for crimes? To many persons, it will be a sufficient answer, that all regular, established governments, however liable to commit occasional errors and mistakes, are God’s vicegerents on earth, and therefore have sufficient authority to punish crimes. Others may be reminded, that government is grounded on an express or tacit compact, made by the constituent members of the society or nation, to obey the laws made by it, and to submit to such sentences, as the courts of the government may award agreeably to the laws, as a penalty for the violation of them. But, here it may be replied, that this answer is not satisfactory, where the sentences involve the sacrifice of human life; because, if, agreeably to the opinion of the greater number of pious and religious men, no person has a right to take away his own life, it follows, that he cannot confer any such right upon society, by any compact which he may form for that purpose. For this excepted case, therefore, as society can derive no authority from consent expressly or tacitly given in the formation of government, a different source of lawful power must be sought. This, however, will readily be found in the natural right of self-preservation, or self-defense. This right each individual has from nature; and however it may be modified in the organization of society, by the compact of its members, or by the various laws made by virtue of that compact, is by no means either given up or abandoned. The various individuals of society, therefore, by constituting their rulers their defenders and protectors, may, and without doubt do, confer on them the right to use any means necessary for their protection, which the several individuals possess themselves. The right, which society has, to punish with death, a murder committed within its territory, seems to follow. Because, though no single individual of the society would have any such right to punish, while in a state of nature; nor, even after the formation of the society, could have any such right, unless it were conferred on him by the rulers; yet, the society itself, and their rulers, as their delegates, would have such lawful power, because the society itself could not subsist, if they had not authority to deprive of life an offender, whose crime showed that he was an enemy of mankind, a disorganizer not to be restrained by law; and one who would destroy the life of every individual who was obnoxious to his malice, as often as the case occurred, if he could do it with impunity. As therefore nature has formed man for society, for mutual protection and benefit, and as it is impossible that society can subsist in security without an authority to deprive of life, those offenders, whose crimes strike at its foundation, it seems to follow, that society possesses this right over such capital offenders, as necessary to its self-preservation.

Sec. IX. Of the pretended right to make war. Under the law of nature, it will be difficult to point out an instance, where an individual has a right to make war on another, if it is to be considered, as affording a justification for offering violence to him, in any other circumstances than those already suggested under the heads of ‘the right of self-preservation.’ ‘the right of self-defense,’ &c. &c. For, a war for the purpose of retaliation, of punishing a wrong-doer, of setting an example, or giving a warning to others, it is believed, is wholly unauthorized by natural right. Suppose, in a state of nature, that A has slain the son of B, yet, by the law of nature, B has no right to deprive A of life, because A’s crime is finished and can no longer be prevented, since B’s son cannot be restored to life. B can derive no authority or right from the pretense, that he means to protect the rest of mankind, because it does not appear, that they are in any immediate or unavoidable danger, nor that he has any authority to act as their ruler or protector. Neither has he any authority, as judge, to punish a crime, when he has no lawful jurisdiction to determine on the merits of the case. For, it is possible that B’s son may have been slain on a justifiable occasion. The reader may be referred to the case narrated in the Bible, where Abner slew Asahel in self-defense, yet was treacherously murdered for it by Asahel’s brother Joab. In the case supposed, the principal injury is done to the person slain. This injury the father has no natural right to avenge, because this authority belongs to the Supreme Being alone. If, therefore, the father arrogates to himself this office, the assumption seems obnoxious to the charge of impiety, because, it seems to imply, a disbelief in the existence of a God, or a distrust in his justice. Yet, if the father should sustain any peculiar loss or damage from the death of his son, it cannot be doubted, that, by the law of nature, he will have a right to enforce reparation, in the same manner, as, if the damage arose from any other wrongful act. But, in a state of nature, the punishment of the principal crime must be left to the Ruler of the Universe. Why then, it may be asked, may not the punishment of murder be left to him, if committed in organized society? The answer is, that God has given an express command to punish willful murder with death. This command, it is supposed, is addressed to the rulers of every organized society, who, in this respect, must consequently be considered as invested by him with the necessary authority to try and punish the crime. For, it is much more reasonable to suppose, that this power is confided to an impartial tribunal, than to consider it as left to be exercised by the partiality and violence of private feeling. In the former case, guilt must be proved before it is punished; in the latter, innocence itself, might not always be able to obtain even a hearing.

Sec. X. Of the right to form associations, and organize society. The true doctrine on this subject, it is believed, will be best illustrated by the following imaginary case. Let it be supposed, then, that five thousand families are living peaceably, though in a state of nature, on a territory of sufficient extent, each family residing on its separate district. Let it be supposed, further, that some few of them, who are scattered among the rest, are desirous of forming a society, for their mutual protection, but that the greater number, disliking the restraints of society, and preferring their natural liberty and independence, refuse to join in this project. Here, it cannot be doubted, that the smaller number have a perfect right to form such a society, notwithstanding the refusal of the others to unite in it. Because man is formed for society, and has a natural right to provide for his security and happiness, in any way that he has a physical power to do, so that he violates no duty of religion, and infringes no right of the rest of mankind. It follows, therefore, that the dissenting families have no right to prevent the formation of the society. For, though they may be apprehensive of ill-consequences from the neighborhood of such a society, they have no right on that account to interfere with the freedom of action of its members; because their fears may be ill-grounded. The dissentients, consequently, will have no right to molest the society or any of its members, until some injury has actually been offered by them. When this happens, the individual injured by the society will retain his natural right to demand and enforce reparation in the manner already suggested in a preceding section. On the other hand, it is clear that, the society would have no right to compel any of the dissentients to come under its regulations or obey its laws; because, in relation to them, the constituent members of the society gain no new rights or powers by forming their association and agreeing upon a government. Their laws therefore will not bind those who refuse to enter into the society, as respects whom, the members of the society will retain the same rights which they had before its formation, though the power and authority to enforce those rights will probably be entrusted to the rulers of the society, and not be enforced by the members individually. This, however, will depend on the terms of the association, or the constitution of the society. It is thus apparent, that the smaller number of families, derive no right to control the majority, from the mere act of forming a society. Let us consider, then, whether if the society had been formed by the greater number, they would have a right to control the smaller number, and compel them to join in it, or submit to its laws and regulations. To determine this question, it will be sufficient to suppose the society to be formed by the precise number of 499 families, and that there are 501 dissentients [dissidents]. Now, it is obvious, that if two of the dissentients alter their opinions and join the society, the dissentients will then become the smaller number. But, can it be supposed for a moment, that, by the law of nature, where there is no previous agreement to that effect, the change of opinion in two persons, shall take away the right of refusing to join the society, which 499 independent families previously had? This would be absurd; for, where there is no previous agreement in restraint of a natural right, it never can be taken away by the mere act of a third person. If it could, it would be improperly called a right, since its existence would depend on such person’s discretion. It is thus evident, that there is no natural right, in the major number of the inhabitants of a territory, while living in a state of nature without any government, to control the smaller number, either by compelling them to join in the formation of a government, or by making laws for the regulation of their conduct. Each individual therefore, in strictness, has a right to refuse to join in the original formation of the society, and yet retains all his natural rights entirely unimpaired.

Two important consequences follow from the doctrine just stated. 1. As each individual has a right to refuse to join the society, he may stipulate for what terms he pleases, as the conditions on which he is willing to join in forming the association. And, if those terms are agreed to, and he accordingly joins the society, those terms must be kept, for, if they are violated, he will have a right to return to his state of independence. Suppose, for example, that the smaller number should stipulate, that it should be part of the social compact, that no law should be enacted, unless by the voice of two thirds of the members; this would be binding upon the whole society, and could never be altered, without the consent of all. If this stipulation were infringed, the constitution would be violated, the compact would be broken, and consequently would cease to be binding, and the society would be dissolved so far as concerned the dissenting members. This is sufficient to show, that the right of the majority to govern, however fair and equal, has no other foundation, than the agreement of the original members of the social compact, not being at all grounded on any natural right; this subject however will be examined more at large in another place.

2. As no individual, in a state of nature, can justly be compelled to join in the formation of society; so the society, or, those who propose the formation of one, have an absolute right to refuse admission to its rights and privileges, to all those persons whom they dislike, for whatever cause. It follows, that they may justly stipulate for whatever qualifications they think best, of character, abilities, or property; and no person, not possessing such qualifications, will have any just cause of complaint, at being excluded from the society, for the want of them.

But, after these qualifications have been once agreed upon, unanimously, (for the majority have no natural right, in this respect to bind any but themselves,) these qualifications cannot rightfully be altered, so as to disqualify any of the members, without the consent of every one, including even the party thus to be disqualified. If this were not so, it is obvious, that a great fraud might be practiced. For, if they agreed unanimously on certain qualifications at first, and then the majority had a right to alter them, and accordingly did so, it is evident, that all those, who would not have joined the society on the terms contained in the alteration, would be defrauded of their natural right, if they are compelled in this indirect way to submit to the will of the majority. In any such case, their natural right to recede will revive, and, if they should continue to dwell in the territory of the society, they will become merely resident aliens, owing allegiance to the society no longer than while they abide within its boundaries. Having considered some of the principal rights, which men have in a state of nature, previously to the formation and organization of society, and having established as an axiom that no individual can justly be deprived of the exercise of them, unless in consequence of his own assent, expressly or tacitly given, for, otherwise they can hardly be viewed as rights at all, it may not be amiss in this place, to touch very briefly upon the origin of society and the principal objects and inducements, which men probably had in view in both. These inducements and objects will more readily appear, if we consider the inconveniences, which must unavoidably attend any considerable number of families, living in the neighborhood of each other in a state of nature. One of the first inconveniences which would be felt, would be the want of a common tribunal of justice, to determine questions of conflicting claims or rights. For, on the supposition, that all these families at first were living on friendly terms with each other in general, it is impossible that disputes and controversies should not, sooner or later, arise among some of them. The consequence would then be, that, for want of such a tribunal, every individual who considered his rights infringed by another, would immediately make use of all his exertions to obtain reparation; while, on the other hand, the wrong doer, if he were so, would maintain his wrong, if possible, from the same motives which first led him to commit it; and, if he considered himself in the right, would, with still better reason, defend himself to the last extremity, from what he would then consider unlawful aggression. The two parties, in all probability, would soon commence hostilities, each uniting to himself all the other families, whom he could induce to take a part in his cause. The more effective party would prevail in the conflict, and, according to the barbarous practice of early ages, the conquered party would either be slain in battle, massacred after the defeat, or compelled to serve their conquerors as slaves. The leader of the conquering party, who very possibly might be the individual who had induced them to take up arms in the first instance, would very naturally obtain great influence over all his followers and adherents, either by distributing among them the spoils^of the vanquished, or by reason of the good opinion which they would entertain of his military skill or personal prowess, as displayed in this petty warfare. The advantages, which they had derived from acting in concert, and from the organization of their forces, which however imperfect, would be sufficient to enable them to perceive the superiority of a regular force, over a confused and disorderly multitude, would naturally prompt them to continue in society with each other, and their recent success would fix their choice upon their leader. Without descending into minute particulars and details, all of which would vary with circumstances, it is very apparent that the leader would gradually enlarge his powers by usurpation, and in this way would soon render his office, which, in the first instance, being bestowed from merely personal considerations, would unquestionably be elective, hereditary in his own family. The subjects, after they had several times experienced the evils which naturally attend a war for the succession between two or more competitors, would gladly submit to any such arrangement as would permit them to have the benefit of government, without the necessity of involving themselves in a murderous contest, in order to decide who should be the ruler.

This account of the origin of monarchy, it is believed, has often been verified by the experience of nations, and if the history of early times may be trusted, more than one may be traced to beginnings not materially variant from it, in principle.

It may be remarked here, transiently, that though there are three simple forms of government; viz: 1. a Monarchy, where the power of the government in the last resort, is settled in an individual, who has a power to nominate his successor to the throne; 2. an Aristocracy, where the same power is exercised by a certain limited number of individuals, who have the power of keeping their body full, without any interference of the people; 3. a Democracy, where the whole body of the people make the laws and decide on all public measures, and form collectively the fountain of all political power; to which may be added various combinations of these simple forms, such as limited or elective monarchies; republics, &c. &.c. Yet, it is believed, that monarchy alone, naturally succeeds to anarchy, where men live in a state of hostility and violence, without any regular government. Yet, however unlikely, it is very possible that either a democracy or an aristocracy may be established, in the first instance, as a form of government. Thus; to continue the detail of the consequences of the former supposition, let it be supposed further, that, after the establishment of the organized society under the control of a military leader, and which comprised part only of the whole number of families, the neutral party, or those who took no part in the contest, seeing the slaughter or subjugation of those who had been defeated, should entertain a wish to secure themselves, as far as possible, from the chance of a similar catastrophe, (which suggests the other principal inconveniences of a state of nature, viz. insecurity of life, liberty and property). For this purpose, they might form themselves into a society, more or less organized according to circumstances; and, if there were no particular individual among them, conspicuous over the rest, for superior wisdom, military prowess, the number of his family or hired attendants, or great wealth, it is not unlikely that they might agree to be governed by the direction of some small number of warriors or sages, constituting a council or senate, and who appeared to be most able to guide them by their wisdom and experience, and protect them by their military skill and valor. Here, in the mere act of agreeing to submit to the control of these worthies, the heads of the families, who constitute the elements of society, would act as members of a democracy. But, as soon as the agreement was once made, the government agreed upon would be an aristocracy.

But, if, instead of adopting either of these steps, the heads of families should assemble together, and make an agreement with each other, to pursue such measures, and obey such laws and regulations, as they should agree upon, either unanimously, or by a majority of two thirds, or by a simple majority, and should afterwards choose a certain number of officers, either for a certain time, or removable at pleasure, or during good behavior, to enforce obedience to those laws, and distribute justice, they would then constitute a pure democracy. It is not intended in this place to discuss the respective advantages of these various forms of government. But, where there is a large extent of country, containing within it many various nations under distinct governments, none appears to be more safe than an hereditary monarchy. The consequence of being governed by an elective monarchy is seen in the fate of Poland. A simple democracy would immediately fall a prey to a neighboring monarchy. The delay and dissensions of their councils would be such, that without taking into the account the very probable chances of corruption, the monarchy would overrun the democracy, before the members of the latter could agree upon any measures for the general defence. If any one should object here the long continuance of the Roman Republic, surrounded by the most warlike nations, many of whom were governed by kings of great military skill, it may be replied, that Rome was rather an aristocracy, than a democracy from the time of the expulsion of the Tarquins, to that of Julius Caesar,- notwithstanding occasional and partial changes in the government. Yet Rome was saved more than once during that period, by the decisive measure of appointing a dictator, an officer who possessed absolute power for the term of six months, and who could not be called to account for any measures however arbitrary and tyrannical, which he chose to adopt during that time. An aristocracy is a far more effective form of government than a democracy. This is very apparent from the history of Venice. But the inequality of rank would be an insurmountable objection to the adoption of such a form of government, among freemen who acknowledge no natural superiority of right in one man over another. It is greatly to be apprehended, therefore, if hereafter, the Union of the American States should be dissolved, that those States, which attempt to preserve the republican form of government, will easily be overrun by those who adopt a more energetic form.

The principal inducements, which men, living in a state of nature, would have, to form an organized society, would seem to be, 1. To have a tribunal, to which they might apply for the redress of any infringement of their natural rights, and thus prevent dissensions among those who were desirous of living together on friendly terms, from maturing into broils, outrages, and murderous conflicts, which dissensions, for want of such a tribunal, would necessarily arise from conflicting claims and pretensions; 2. To secure their persons and property from molestation by external enemies.

There are no doubt many other benefits arising from the organization of society, which, if they had been foreseen, might very probably have offered, of themselves, sufficient inducements to adopt that measure; as, for instance, the invention or at least a great improvement in trade or barter, as well as in manufactures, a rapid advancement in art and science in general, as well as every species of practical or speculative knowledge, necessarily accompanied with an increased degree of humanity, civilization, and refined social intercourse. Without mentioning other advantages, which might be enumerated, or wasting time in an unprofitable descant upon these, it should be observed, that these benefits are not to be obtained without a partial relinquishment of some of those natural rights -which pertain to men individually before the organization of society. Among the rights which are thus relinquished in a greater or less degree, the most usual are, 1. the right, which in a state of nature, each individual has of redressing his own wrongs, personally; 2. the right of acting as he pleases, and consulting his own happiness alone, provided that he infringes no duty of piety and religion towards his Maker, and neglects or violates no obligation of justice, charity and humanity towards mankind. With regard to the first of these rights, there appears to be an almost total relinquishment of it to the government, in the first formation of the society. There certainly is with regard to all those wrongs, which come within the jurisdiction of any of the tribunals or courts established, by the government. But; with relation to those wrongs, the redress of which is not thus provided for, it would seem most expedient for the welfare of society, to consider, that the members of the community in forming a government, for the purpose of enacting laws and establishing tribunals of justice, had agreed to submit to the legislature, or to the Judges of the courts to determine, whether any grievance or injury complained of is of such a nature, or of sufficient importance to demand the aid of the court, and if it be not in their opinion, had agreed to pass it over in silence, until the legislature should alter such opinion, and see fit to interpose and provide a remedy.

2. In relation to natural liberty or freedom of action, it may be remarked, that it is with a view to this right, that governments are usually esteemed to be more or less free, precisely as this freedom is more or less trenched upon by the laws of such governments respectively. On entering into a social compact, the members might very naturally stipulate for the reservation of certain particular liberties or exemptions, which reservation ought to be strictly observed and complied with by the rulers or constituted authorities. If they are slighted or trampled upon, the power of the rulers will so far be usurped, and their government tyrannical.

But, with the exception of those reserved rights, the members of the society would be considered as agreeing to relinquish to the government so much of their natural freedom of action as should become necessary, from time to time, to obey and observe such laws and regulations, as the rulers, within their constitution or social compact, should think expedient to enact and promulgate for the general good. It would not be, therefore, so much the rights themselves, of liberty and freedom of action, which they relinquish for the good of society; as it would be a power to limit, restrain or wholly take away the exercise of those rights, which they would confer on the rulers, with a stipulation express or tacit, that such power should never be exercised except for the general and equal good of all. For the true idea of government seems to be, that it is established by the people, for the preservation of their natural rights in general, by a partial sacrifice of a few particular ones.

But, it is not merely, the freedom of action, which each individual relinquishes in a greater or less degree to the control of government; but he agrees also to do whatever the rulers shall judge expedient for the general good of the whole, with a stipulation, express or tacit, that legislation shall be general, and comprehend all the individuals of the society to whose circumstances it may be equally applicable.

As men, in relation to their rights, are by nature equal, no man can justly be subjected to the control of another, or any number of others, without his consent; or, unless he has committed some crime, or has come under some obligation. As, therefore, it cannot be supposed that any individual would originally have agreed to join with others in organizing a society, where he would not stand on equal ground with the rest, any law which would tend to degrade him below the rest, must be inequitable and in violation of an implied understanding. For, in strictness, no law can be binding, if inconsistent with the restrictions contained in the social compact or constitution of the society, and beyond the powers intended to be granted in it.

Having stated in very general terms, though with as much distinctness as the necessary limits of this chapter, and the nature of the case, would conveniently permit, the rights which men have in a state of nature previously to the organization of society, and touched slightly upon the inconveniences of a state of nature, and the consequent inducements which men had to unite and form a government; having also briefly considered some of the natural rights, which it is necessary, that men should relinquish in a greater or less degree, according to circumstances, to the government of the society, in order to obtain the objects of its organization, this chapter will conclude with a few remarks upon those natural rights, more or less of which are usually retained by the members of society, notwithstanding their entering into such an organized union.

Continued in RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights
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George Mason of Virginia the Father of the Declaration of Independence

GeorgeMason-paintingThe emancipation of the states of North America must ever be regarded as one of the most memorable events recorded in the annals of the human race. The revolutions, which have embroiled and desolated the great nations from which they sprang, are acknowledged to have received their first impulse from the principles and events of the American struggle. The grave has closed upon a great majority of the leaders in the American revolution; and the characters of the founders of our independence and freedom are beginning to be contemplated with the severe impartiality of a distant posterity. The passions which buoyed, annoyed, or infested their individual fame have subsided. Each is receiving a settled and mellow luster; and a just judgment is already busily engaged in assigning the decree of estimation and respect which a grateful posterity should continue to render to the memory of each of those whose efforts have obtained so many blessings and such everlasting glory for this nation.

Among the conductors of those important events, the name of George Mason, must always hold a distinguished place. An exhibition of character, in a public station, may be calculated to give an impression of the profoundest respect; but, the sincerest, and best affections of the heart can only be won by those traits, which are developed when the individual has been divested of the imposing forms and circumstances of place and office. It is for these reasons, as well as for the rays of light which they shed upon the most interesting portion of the history of our country, that I send you the following papers.

George Mason, their author, was an independent planter, resident in Fairfax county, Virginia, his native state, when the revolution commenced. He was a man endowed by nature with a vigorous understanding, which had been well cultivated by a liberal education. He was a sound constitutional lawyer, although he had not practiced or been bred to the profession. His mind had, evidently, been well stored from the best political writers of his time. In temperance he was, like the younger Cato, constitutionally stern, firm, and honest; and in all the affairs of life, in which he was engaged, as well private as public, he was habitually, minutely, and critically clear, punctual, exact, and particular. He was a member of the first conventions and assemblies elected by the people independently of the colonial authorities. He chose and valued most, the station of a representative of the people ; because he thought it most honorable, and one where he could be most useful; nor did he ever consent to accept of any other, but once, when he acted as a commissioner to adjust the navigation and boundary, between Maryland and Virginia. He was a man of the people in spirit and in truth; and every act of his life incontestibly evinces, that in their cause he never once, or for a single moment, trembled, hesitated, or wavered.

Many intelligent foreigners, and some of our own countrymen, whose judgments have been confused or perverted by aristocratic principles, entertain a belief, and propagate the opinion, that our liberties were principally established by the integrity, wisdom, and forbearance of our military leaders. To such it will be particularly instructive to attend to the first of the following letters from this venerable patriot; written at a time, and under circumstances singularly impressive and affecting. In a ripe old age, chastened by experience, when the hand of Providence had visited his household with such an affliction as to induce him to desire no more the return of hilarity to his heart, he seats himself in his closet to unbosom himself to his friend ; to tell him of his political opinions and principles and to speak of the sentiments, feelings, and probable fortunes of his country. This letter, which is so highly honorable to its author, furnishes conclusive proof, that all the chiefs, as well military as civil, were guided and qontroled by the people, and bears ample testimony to their virtue and their glory.

He was a member of the convention which formed the present constitution of the United States, and appears to have been deeply, and sincerely impressed with the magnitude of the undertaking. He was afterwards a member of the convention of Virginia by which it was ratified, which he actively and firmly opposed, without previous amendments. He was a most decided enemy to all constructive and implied powers. And it is remarkable, that he was the. author of some, and the warm advocate of every amendment since made to it. His friend and coadjutor, the illustrious Henry, poured forth the boundless wealth of his impassioned eloquence in opposition ; he charmed, enchanted, or won over many of his auditors to withhold their assent from the proposed plan of government. But, when Mason spoke, he seemed to cite his hearers severally to the bar of reason and truth, and imperatively to demand of them to produce the reason and grounds upon which they proposed to tolerate the pernicious principles he denounced. Henry delighted, astonished, and captivated. Mason stirred the house, and challenged every friend of the new constitution to stand forth; at the same time, that he made them feel, they would have to meet an antagonist whom it was difficult to vanquish, and impossible to put to flight; such was the clear, condensed, and dauntless vigor he displayed.

George Mason was a member of that convention of Virginia, which, on the fifteenth day of May, 1776, declared that state independent and formed the constitution by which it is still governed. And to him belongs the honor of having draughted the first declaration of rights ever adopted in America, of which the following is a copy. The few alterations made by the convention, which adopted it unanimously on the twelfth day of June, 1776, and made it a part of the constitution of Virginia, where it yet remains, are noted. This declaration contains principles more extensive, and much more perspicuously expressed than any then to be found in the supposed analogous instruments of any other age or country.

The English magna charta was, strictly speaking, a contract between an assemblage of feudal lords and a king, not a declaration of the rights of man, and the fundamental principles on which all government should rest. “It was not so much their intention to secure the liberties of the people at large, as to establish the privileges of a few individuals. A great tyrant On the one side, and a set of petty tyrants on the other, seem to have divided the kingdom; and the great body of the people, disregarded and oppressed on all hands, were beholden for any privileges bestowed upon them, to the jealousy of their masters; who, by limiting the authority of each other over their dependents, produced a reciprocal diminution of their power.”

The articles drawn up by the Spanish junta, in the year 1522, under the guidance of the celebrated Padilly, are much more distinct and popular in their provisions than those of the English magna charta. But, although it is admitted, that the principles of liberty were ably defended, and better understood, at that time in Spain, than they were for more than a century after, in England, the power of Charles Jth proved to be irresistible, the people failed in their attempt to bridle his prerogative, and their liberties were finally crushed.

The famous English bill of rights sanctioned by William and Mary on their ascending the throne, and which, under the name of the petition of rights, appears to have been projected many years before by that profound lawyer, sir Edward Coke, like magna charta, and the articles of the Spanish junta, is a contract with nobility and royalty, a compromise with despotism, in which the voice of the people is heard in a tone of disturbed supplication and prayer. But in this declaration of Mason’s, man seems to stand erect in all the majesty of his nature —to assert the inalienable rights and equality with which he has been endowed by his Creator, and to declare the fundamental principles by which all rulers should be controled, and on which all governments should rest. The contrast is striking, the difference prodigious. And when I read, at the foot of this curious original, the assertion of its author, that “This Declaration of Rights was the first in America;” I see a manly mind indulging its feelings under a consciousness of having done an act so permanently and extensively useful. And what feeling can be so exquisitely delightful? what pride more truly virtuous and noble?

The principles of liberty filled and warmed the bosom of this venerable patriot in that last hour, which is an awful, and an honest one to us all; in his last will, he speaks in his dying hour, and charges his sons, on a father’s blessing, to be true to freedom and their country. He was indeed and in truth one of the fathers of this nation. Therefore, let every son of free America, as he enters upon the busy scenes of life, hear and solemnly beseech Heaven to fortify him in the faithful observance of this sacred charge of one of the most worthy fathers of this country.


(Copy of the first draught by George Mason.)

A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention ; which rights do pertain to them and their posterity, as the basis and foundation of government, unanimously adopted by the convention of Virginia, June 12th, 1776.

1. That all men are created equally free and independent, and have certain inherent natural rights of which, they cannot, by any compact, deprive, or divest their posterity; (a) among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. – a. That all power is by God and nature vested in and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them.

3. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community. Of all the various modes and forms of government, that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

4. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary.

5. That the legislative and executive powers of the state should be separate and distinct from the judicial; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, and return unto that body from which they were originally taken, and vacancies be supplied by frequent, certain and regular election, (a)—

6. That elections of members, to serve as representatives of the people in the legislature, ought to be free, and that all men having sufficient evidence of permanent common interest with, and attachment to the community, have the right of suffrage; and cannot be taxed, or deprived of their property for public uses without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the common good.

7. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

8. That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; and that no man be deprived of his liberty, except by the law of the land, or the judgment of his peers.

9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

10. (This article was inserted by the convention.)

11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.

12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

13. That a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by the civil power.

14. (This article also was inserted by the convention.)

15. That no free government, or the blessing of liberty, can be preserved to any people,  but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.

16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and, therefore that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate; unless under color of religion, any man disturb the peace, the happiness, or the safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.

“This declaration of rights was the first in America; it received few alterations or additions in the Virginia convention, (some of them not for the better,) and was afterwards closely imitated by the other United States.”

georgemasonstatue2The foregoing was copied verbatim from the original, the hand-writing of the author, col. George Mason, of Virginia, left in the possession of his son, gen. John Mason of Georgetown. In order to facilitate the comparison of it with that which was adopted by the convention, and is still in force, it has been thought proper to number the articles as in the adopted declaration, omitting the tenth and fourteenth which were inserted entire by the convention; and to place those words in italics, which were either expunged or altered, and to put a caret where others were added.

Letter From George Mason.

“Virginia, Gunston-hall, 1778.

“My dear sir.—It gave me great pleasure, upon receipt of your favor of the 23d of April, (by Mr. Digges) to hear that you are alive and well, in a country, where you can spend your time agreeably; not having heard a word from you, or of you, for two years before. I am much obliged, by the friendly concern you take in my domestic affairs, and your kind enquiry after my family; great alterations have happened in it. About four years ago I had the misfortune to lose my wife: to you, who knew her, and the happy manner in which we lived, I will not attempt to describe my feelings: I was scarce able to bear the first shock, a depression of spirits, a settled melancholy followed, from which I never expect, or desire to recover. I determined to spend the remainder of my days in privacy and retirement with my children, from whose society alone, I could expect comfort. Some of them are now grown up to men and women; and I have the satisfaction to see them free from vices, good-natured, obliging and dutiful: they all still live with me, and remain single, except my second daughter, who is lately married to my neighbor son. My eldest daughter (who is blessed with her mother’s amiable disposition) is mistress of my family, and manages my little domestic matters, with a degree of prudence far above her years. My eldest son engaged early in the American cause, and was chosen ensign of the first independent company formed in Virginia, or indeed on the continent; it was commanded by the present general Washington as captain, and consisted entirely of gentlemen. In the year 1775, he was appointed a captain of foot, in one of the first minute-regiments raised here; but was soon obliged to quit the service, by a violent rheumatic disorder; which has followed him ever since, and, I believe will force him to try the climate of France or Italy. My other sons have not yet finished their education: as soon as they do, if the war continues, they seem strongly inclined to take an active part.

In the summer of’ 75, I was, much against my inclination, drag’d out of my retirement, by the people of my county and sent a delegate to the general convention at Richmond; where I was appointed a member of the first committee of safety; and have since, at different times, been chosen a member of the privy-council, and of the American congress; but have constantly declined acting in any other public character than that of an independent representative of the people, in the house of delegates; where I still remain, from a consciousness of being able to do my country more service there, than in any other department, and have ever since devoted most of my time to public business; to the no small neglect and injury of my private fortune; but if I can only live to see the American union firmly fixed, and free governments well established in our western world, and can leave to my children but a crust of bread and liberty, I shall die satisfied; and say, with the psalmist, “Lord now lettest thou thy servant depart in peace.” —To show you that I have not been an idle spectator of this great contest, and to amuse you with the sentiments of an old friend upon an important subject, I enclose you a copy of the first draft of the declaration of rights, just as it was drawn and presented by me, to the Virginia convention, where it received few alterations; some of them I think not for the better: this was the first thing of the kind upon the continent, and has been closely imitated by all the states. There is a remarkable sameness in all the forms of government throughout the American union, except in the states of South Carolina and Pennsylvania; the first having three branches of legislature, and the last only one; all the other states have two: this difference has given general disgust, and it is probable an alteration will take place, to assimilate these to the constitutions of the other states. We have laid our new government upon a broad foundation, and have endeavored to provide the most effectual securities for the essential rights of human nature, both in civil and religious liberty; the people become every day more and more attached to it; and I trust that neither the power of Great Britain, nor the power of hell will be able to prevail against it.

There never was an idler or a falser notion, than that which the British ministry have imposed upon the nation, that this great revolution has been the work of a faction, of a junto of ambitious men against the sense of the people of America. On the contrary, nothing has been done without the approbation of the people, who have indeed outrun their leaders: so that.no capital measure hath been adopted until they called loudly for it: to any one who knows mankind, there needs no greater proof than the cordial manner in which they have cooperated, and the patience and perseverance with which they have struggled under their sufferings ; which have been greater than you, at a distance can conceive, or I describe. Equally false is the assertion that independence was originally designed here: things have gone such lengths, that it is a matter of moonshine to us, whether independence was at first intended, or not, and therefore we may now be believed. The truth is, we have been forced into it, as the only means of self-preservation, to guard our country and posterity from the greatest of all evils, such another infernal government (if it deserves the name of government) as the provinces groaned under, in the latter ages of the Roman commonwealth. To talk of replacing us in the situation of 1763, as we first asked, is to the last degree absurd, and impossible: they obstinately refused it, while it was in their power, and now, that it is out of their power, they offer it. Can they raise our cities out of their ashes? Can they replace, in ease and affluence; the thousands of families whom they have ruined? Can they restore the husband to the widow, the child to the parent, or the father to the orphan? In a word, can they reanimate the dead?—Our country has been made a scene of desolation and blood—enormities and cruelties have been committed here, which not only disgrace the British name, but dishonor the human kind, we can never again trust a people who have thus used us; human nature revolts at the idea !— The die is cast—the Rubicon is passed—and a reconciliation with Great Britain, upon the terms of returning to her government is impossible.

No man was more warmly attached to the Hanover family and the Whig interest of England, than I was, and few men had stronger prejudices in favor of that form of government under which I was born and bred, or a greater aversion to changing it; it was ever my opinion that no good man would wish to try so dangerous an experiment upon any speculative notions whatsoever, without an absolute necessity.

The ancient poets, in their elegant manner of expression, have made a kind of being of necessity, and tell us that the Gods themselves are obliged to yield to her. When I was first a member of the convention, I exerted myself to prevent a confiscation of the and although I was for putting the country immediately into a state of defence, and preparing for the worst; yet as long as we had any well founded hopes of reconciliation, I opposed to the utmost of my power, all violent measures, and such as might shut the door to it; but when reconciliation became a lost hope, when unconditional submission, or effectual resistance were the only alternatives left us, when the last dutiful and humble petition from congress received no other answer than declaring us rebels, and out of the king’s protection, I, from that moment, looked forward to a revolution and independence, as the only means of salvation; and will risk the last penny of my fortune, and the last drop of my blood upon the issue: for to imagine that we could resist the efforts of Great Britain, still professing ourselves her subjects, or support a defensive war against a powerful nation, without the reins of government in the hands of America (whatever our pretended friends in Great Britain may say of it) is too childish and futile an idea to enter into the head of any man of sense. I am not singular in my opinions; these arc the sentiments of more than nine tenths of the best men in America.

God has been pleased to bless our endeavors, in a just cause, with remarkable success. To us upon the spot, who have seen step by step the progress of this great contest, who know the defenseless state of America in the beginning, and the numberless difficulties we have , had to struggle with, taking a retrospective j view of what is passed, we seem to have been treading upon enchanted ground. The case is now altered. American prospects brighten, and appearances are strongly in our favor. The British ministry must and will acknowledge us independent states.”

georgemasonstatue3George Mason To A Friend.

Extract of a letter from colonel George Mason, of Virginia (while serving in the general convention), to a friend in that state.

Philadelphia, June, 1787.

“The idea I formerly mentioned to you, before the convention met, of a great national council, consisting of two branches of the legislature, a judiciary and an executive, upon the principle of fair representation in the legislature, with powers adapted to the great objects of the union, and consequently a control in these instances, on the state legislatures, is still the prevalent one. Virginia has had the honor of presenting the outlines of the plan, upon which the convention is proceeding; but so slowly, that it is impossible to judge when the business will be finished; most probably not before August—festina lente (Make Haste Slowly) may very well be called our motto. When I first came here, judging from casual conversations with gentlemen from the different states, I was very apprehensive that, soured and disgusted with the unexpected evils we had experienced from the democratic principles of our governments, we should be apt to run into the opposite extreme, and in endeavoring to steer too far from Scylla, we might be drawn into the vortex of Charybdis, of which I still think, there is some danger; though I have the pleasure to find in the convention, many men of fine republican principles: America has certainly, upon this occasion, drawn forth her first characters; there are upon this convention many gentlemen of the most respectable abilities; and, so far as I can yet discover, of the purest intentions; the eyes of the United States are turned upon this assembly, and their expectations raised to a very anxious degree.

“May God grant, we may be able to gratify them by establishing a wise and just government. For my own part, I never before felt myself in such a situation; and declare, I would not, upon pecuniary motives, serve in this convention for a thousand pounds per day. The revolt from Great Britain, and the formations of our new governments at that time, were nothing compared with the great business now before us; there was then a certain degree of enthusiasm, which inspired and supported the mind; but to view, through the calm sedate medium of reason, the influence which the establishments now proposed may have upon the happiness or misery of millions yet unborn, is an object of such magnitude, as absorbs, and in a manner suspends the operations of the human understanding.”

“P. S. All communications of the proceedings are forbidden during the sitting of the convention; this I think was a necessary precaution to prevent misrepresentations or mistakes; there being a material difference between the appearance of a subject in its first crude and indigested shape, and after it shall have been properly matured and arranged.”

An Extract From The Last Will And Testament Of Colonel George Mason, Of Virginia.

“I recommend it to my sons, from my own experience in life, to prefer the happiness of independence and a private station to the troubles and vexation of public business: but if either their own inclinations or the necessity of the times should engage them in public affairs, I charge them on a father’s blessing, never to let the motives of private interest or ambition induce them to betray, nor the terrors of poverty and disgrace, or the fear of danger or of death, deter them from asserting the liberty of their country, and endeavoring to transmit to their posterity those sacred rights to which themselves were born.”

Source: Principles and Acts of the Revolution in America. By Hezekiah Niles published 1822

The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849)

bill-of-rights-01.jpgWhen contemplating the liberties, freedoms and protections afforded United States Citizens by the Constitution and Bill of Rights: Remember the Free Exercise of Religion was the first to be protected by the Framers; the Freedom of Speech and of the Press, Right of Assembly, Petition to Government, were meant to protect and promote the Free Exercise of Religion! The Freedom of the Press was meant to insure against the abuse of the government and those in power of all the other rights of man.

Remember also when one right, liberty, or freedom is under attack, they are all under attack, when one is in jeopardy, they are all in jeopardy! The Second Amendment is meant to guarantee the First Amendment!

A dissertation by Senator Ebenezer Mack who was a printer, and co-published the Owego Gazette from 1815 to 1816, and the Ithaca American Journal from 1817 to 1823. He later became a Senator in New York State. Oration was given on 37th anniversary of the Declaration of Independence before the New York Typographical Society.

Brethren, Friends, And Fellow-citizens!

Again are we assembled beneath the wide-spread branches of the tree of liberty.

Although as an association, we have nothing to do with political concerns; yet, as American citizens, do we not, in common with others, feel an interest in every event which affects our country? And as men—as philanthropists—can we remain unmoved amidst the agitations of the civilized world?

To review the past, contemplate the present, and anticipate the future, is ever pleasing, ever instructive. Happy is it for mankind, that the Art Of Printing furnishes us records of times which are no more! Shall we not, then, improve the privilege? It is a proper moment. Let us cast our eyes, in grateful remembrance, to the days of danger, the hours of trial. Let us pay to the heroes of our revolution—the fathers of that freedom we now enjoy—the just tribute of recalling this day to our memories, their patriotism, their perils, their sufferings, and their achievements. And let their deeds and their motives, animate us, at least, to think of glory! Nay—shall we not extend farther back our retrospective views? Time, indeed, will not permit an historical particularization of events—yet, cannot the quick conception of your minds comprehend at one glance, more than the confined powers of limited oratory could convey?

1How changed, indeed, is the vast American continent from the time of its first discovery—when Columbus and his followers first kissed the sod of St. Salvador—when Americus Vespucius, following the path of that hero, in quest of gain, stole a bright wreath from the laurels of his brow, by giving his own name to the land which Columbus discovered. Then—all was desolate and dreary. Now, we behold a happy contrast.

What has contributed to a change so unexampled, and so important? Liberty—Liberty-—which has ever been the guardian goddess of Columbia. Animated by a love of liberty, our fathers left the lands of oppression, and sought an asylum in the western wilds. How dark, how gloomy, were the prospects before them! Surrounded on every side by a savage foe—few in number, feeble, worn down with toil, often emaciated by hunger—what were their hopes, and what should save them from threatening destruction ? Yet, their guardian angel did not forsake them. She enlivened their prospects—inspired them with perseverance. Before the brightness of her countenance, mountains of difficulties melted away—by the strength of her arm, she overthrew powerful obstacles. She promised her followers the noblest reward in life, and smiled upon them in the agonies of death!

Long, indeed, were their struggles with adversity—many were their toils and discouragements. How can we conceive, how shall we describe them ? Could the transitory life of man realize the reward of so much labor ? No ! they toiled for posterity. Theirs was the satisfaction to behold a budding wilderness, which should soon ” blossom like the rose”—to plant a vineyard, which their sons should reap. They beheld, beneath their hands, dreary deserts transformed to cultured fields—towns and hamlets arising, which were to prove the foundations of opulent cities. These were their rewards—these the console of their declining days. Blessing the inheritance to their children, they sunk beneath the soil; and the stone themselves had laid—the corner-stone of a mighty temple, covered their mouldering ashes!

To them succeeded a race, nowise inferior to their fathers. The same vigor braced their limbs; the same perseverance marked their labors, and the same spirit animated their bosoms.

Invited by their success, many of the oppressed of Europe sought a sanctuary among them, to enjoy the glorious privileges of conscience—of political and religious freedom. Growing in strength, in* creasing in numbers, they enlarged their views—extending themselves into the interior, and along the coast, to the east, to the south, and forming those colonies, which are now component parts of the great American republic.

These infant colonies were separated from Europe by a wide ocean. Nevertheless, there was still a (perhaps necessary) connection. Ere the marrow of their bones were full—ere the sinews of their joints were knit together—they sought, or submitted to, the protection of a foreign power. Great Britain, (like all corrupt governments) ever ready to succor the weak, when it tends to advance her power, and subserve her interest, adopted them as her children, and became their mother.

But the iron chain hung yet loose about their necks—the fetters were unrivetted, which bound them in slavery.

Too poor for plunder—too weak for oppression—the colonies were suffered to enjoy partial privileges, and grew daily in strength, commerce, and opulence. They built ships, and wafted their products to every clime; and “their fame spread abroad among the nations.” Their maritime skill, their persevering success in agriculture and in trade, bade fair to outrival the boasted splendor of the mother country.

Could Britain behold their rising power without an eye of jealousy? Could she not foresee their rapid approach to independence? And, if left to gain a prospect of that heavenly summit, that the connexion which bound them to her control, would be broken forever! Britain saw—she felt—she feared all this. Should she reject, then, the allurements of Interest, even when Justice plead against her? It was not in her nature—not her policy! The young lion must be slain in his slumbers—the infant Hercules smothered in his cradle—the Eagle must be caught unfledged!


We will recall, though we pass but slightly over this eventful period.

Now was America doomed to be the victim of ambition—the scourge of tyranny. The burden was increased—the oppressive chain was drawn with an iron hand, and stronger fetters were forged to be rivetted upon her.

At first, the colonies resorted to remonstrance. Through numerous embassies and petitions, they exercised the privilege of complaint. And of what did they complain? Indeed, the recital of their wrongs would prove too tedious—the catalog of oppressions were too extensive. But are they not written in the book? Yes! and the flood of ages will not wash them out! Denied the right of representation—commercial restrictions—oppressive taxes—partial administration, and corrupt government—these were among the most prominent acts of motherly chastisement.

Were these wrongs to be borne by men inured to perils, and inspired from their birth with a love of liberty? No! When all remonstrance had proved vain—when the faintest hope of obtaining justice had fled, they arose in their might, burst the chains which bound them, and declared themselves “Free, Sovereign, and Independent.”

What a sublime moment—what a daring measure, was this ! A few petty colonies, of scattered population, the acknowledged dependencies of a powerful kingdom, whose thousand ships covered the ocean, and whose numerous disciplined armies carried triumph in their progress, and terror in their name! How dare these colonies to forswear their allegiance, and how could they maintain a declaration so perilous? But, our fathers chose to be branded as rebels, rather than as cowards; to die free, rather than live in slavery. Though few though undisciplined, they were brave—Though wanting in arms and ammunitions—they trusted in the God of Justice, and made powerful use of those in their possession. They were indeed few, compared with their oppressors—Their resources were small, compared with those of England. No organized government—no disciplined army, no confidential leaders! Yet Liberty—their guardian Liberty—inspired both their inventive and their executive faculties. At her animating voice, warriors and statesmen arose, whose deeds—whose measures, would not disgrace the proudest heroes of boasted antiquity. They found a WASHINGTON to direct their armies; and in the cabinet, a Franklin, a Hancock, an Adams, and numerous others, whose names need no recital to bear them in remembrance.

And while we pay a tribute to these worthies—while the names of Washington, Warren, Greene, Montgomery, and Gates, are echoed in plaudits of our festivals-—shall we forget their more humble followers, who shared in their toils; who assisted them in all their plans of wisdom and bravery?

“Though high in honor, yet of humble birth,
Their names may perish with them from the earth;
But Time’s rude progress Memory shall defy—
Their glorious deeds shall never—never die!”

Yes—we will record them in our bosoms, and cherish them with the wannest gratitude.

The scenes of our revolution—are they not familiar to us all? Not too sufficiently so. Then, to refresh our memories, shall we point to the field of Lexington, where the first link was broken? to Bunker’s Hill, which stands, a proud monument of American bravery? Follow Montgomery to the walls of Quebec—behold that hero expiring in the arms of Liberty, his faintest breath whispering wishes for his country, and his ardent prayers for her safety ascending with his sainted spirit to Heaven? Shall we review the field of Bennington—where the brave Stark reaped immortal honors? And the plains of Saratoga, where the proud forces of Burgoyne yielded to those of the gallant Gates?

washington-prayerRugged, indeed, was the road our fathers trod to independence. It was a path of danger, and a path of death—but it was a path of glory! Whether we follow them, with Sullivan and Wayne, through the western wilderness, to chastise the murderous savage—where their deeds are rung amidst the wilds of Ohio and Susquehanna— or trace them by the blood of their feet over frozen ground from White Marsh to Valley-Forge—we must every where admire their valor, their fortitude, and their constancy.

It was not to this, nor to that quarter, that their trials were confined. We behold them in the cold regions of Canada, and the sultry Carolina. At Charleston—at Camden—in the Jerseys—at Princeton—at Monmouth—often amidst ill-success, when victory was against them, and their cause seemed dark and gloomy. We do not take a pleasure-excursion to Harlem, nor to admire the green fields of Long Island, but we behold the sacred spots where heroes’ bones have mouldered—the verdant soil, once stained with patriots’ gore! Even, perhaps, the spot of earth over which we are now assembled, has been drenched with the blood of our fathers!

O! Liberty! Heaven-born Liberty! how great is the power of thy inspiration! Thou didst animate the heroes of Greece and of Rome, to deeds of never-dying glory. It is thou that dost inspire the Brutuses, the Kosciuskoes, and the Tells of every country, and of every age. Thou didst rule in the breast of the immortal De Kalb; who nobly fell at the battle of Camden, fighting in a stranger’s land, in thy cause, covered with eleven wounds, amidst a mountain of thy foes! Yes, Liberty! whether on the banks of the Ganges or of the Hudson—amid the wilds of Kamchatka, or the fair regions of Columbia—in the abodes of the great, or the dwellings of the humble— thou dost soften every toil, and sweeten every enjoyment!

It was this spirit, fellow-citizens, that upheld the heroes of our revolution—that sustained them amidst the weight of their sufferings. She washed their wounds with healing balm; soothed the doubts that hung around them; watched over their scattered repose—smiled upon them amidst the broken visions of night, and guided them through the devious contests of the day. When poverty and want darkened around them, she chased away the fiend Despair; and pointed forward, with an exalted hope, to that bright hour, when they should sit beneath their own vines and their own fig-trees, “with none to make them afraid.”

Even the fair daughters of Columbia, catching the hallowed fire, bowed before her shrine as to the temple of Vesta, and became the angelic attendants of celestial Liberty. While still retaining all their natural delicacy, the native tenderness of their hearts—their soft hands were often subjected to the most rugged toils. Their fervent wishes were with their brave defenders in the field of battle, and they even joined their assisting efforts in the field of daily labor. Instancing thus, the sympathy of beauty and bravery—the unison of Liberty and Love.

Yet who, my fellow-citizens, who shall describe the sufferings and the trials amidst which our revolutionary contest progressed? Often may we conceive, what we cannot express. Where the faculties of th.e faltering tongue would fail, the heart may render justice. Inch by inch were our rights contested, till the deciding battle of YorkTown put an end to the struggle, and Confirmed the Declaration of our Independence. Then we arose as a nation. By the united efforts of wisdom and bravery, Columbia was placed upon a rock— her constitution, the rock of Freedom—so firm, that the tempest of Tyranny may rave, and the billows of Time may beat around—yet, while her sons remember the deeds, and cherish the spirit of their fathers, she shall never—never be overwhelmed.

But, the heroes of our revolution—where are they? Look around! Alas! many of them have passed away. They have followed their leader Washington, to realms of glorious immortality! Few—very few, remain behind. Their hoary heads are fast blossoming for the grave! they are ripening for eternity! Soon will it be said of them, as of the patriarchs of old, “they slept with their fathers, and their sons ruled in their stead.”

Let not their sons, then, tarnish their glory! We have enjoyed the blessings of peace and commerce. We have become rich in resources, and strengthened by numbers. We know the price, the value of Liberty. America once more is involved in a contest with the very power from whose chains she has been emancipated. Is this contest right—is it just on our part? Is it not a contest to Maintain those rights, that liberty, which our forefathers Acquired? Far be it from me on this occasion to pursue the inquiry. I will not prolong the subject, which has presented itself in the course of events, nor enter into an examination of its merits—lest some of you should whisper me the old proverb, “Let thine own business engage thy attention—leave the affairs of the state to the governors thereof!” Have we, then, no interest in these important concerns? As freemen, we have the happy privilege of enjoying our private opinions. As patriots, too, we may this day rejoice in those victories and those successes which tend to promote the honor and prosperity of our country. We may also regret whatever we conceive has a contrary effect. It were wise, indeed, for every American, at this crisis—a crisis which involves the dearest interests of our country—to dispel the spirit of party, which, under different names, and in different shapes, blinds the eyes of its followers. It were wise to make the reason of our hearts the standard of our principles. Thinking and acting thus, from honorable motives, conscience would direct to pursue our country’s good; and we should then remain worthy of the blood-bought privileges we enjoy.

in-the-age-of-tyrannyShall we forget the deeds of Decatur, of Hull, of Jones, and of Bainbridge? Shall we forget the death of Lawrence, of Ludlow, and of Pike? Surely, the cause in which such men fought—the cause in which such men fell—is worthy to inspire a spirit in the bosom of every freeman!

Injustice to the living brave, shall the voice of praise resound— In remembrance of those heroes fallen—shall a manly tear moisten the eye, and the heart beat with emulous, with ecstatic gratitude.

There is not in human nature a character more exalted than that of the Patriot—the man who, disregarding his own immediate individual interest, labors for that of his country. When foes—when dangers surround—he does not so much inquire, “Are they self provoked, or unmerited?” as, “how shall we meet them? how shall they be repelled?” Is he high in society—his merits shall sweeten, adorn, and dignify his station. Is he poor and humble—the attributes of his character shall raise him far above the proudest eminence of ambitious fortune. Through life, he is honored and respected, and the blessings of a whole community attend him to the grave.

Whatever may have produced the present war, is not a speedy and an honorable peace desired by every patriotic American? And should every American unite, in sentiments and efforts, to attain that grand object, would it not soon be ensured?

“From chains to save his country—to repel
Her ruthless foes, and save a threatened state—
A glorious spirit stimulates the brave,
Whose lofty purpose is the pledge of triumph!”

Would we learn to estimate the favors with which, under Divine Providence, our country has been blessed? Turn our eyes to Europe—the happiest spot of devoted Europe! There hell-born Despotism reigns in iron sway! Ambition, with giant tread, stalks o’er the fields, spreading desolation around, and drenching the earth in blood. Liberty has fled—she has no spot for a foot-stool. Religion, civilization and science, are about to follow. Her subjects are degraded to the condition of beasts—her rulers, exalted to the sublime preeminence of Destroying Demons! To what may we ascribe this state of things? To corrupt systems of government—where one or a few individuals bear sway, seeking personal power and aggrandizement, disregardful of the general welfare! O, Europe! Humanity weeps for thee! she weeps for thy crimes, thy follies and thy sufferings; but turns with disgust from the scenes of thy degradation! She directs her eyes (with mingled pleasure and anxiety) to Columbia! Here, her hopes are centered—Here shall they flourish, sacred to Freedom, to science, and to virtue.

Who, grown prophetic from a knowledge of past ages, by the examples of Greece and of Rome, shall predict a subversion of American liberties? What similitude do they discover in the origin, the local condition, or the governments of ancient republics and our own, which warrants such a prediction? We are not sprung from “a lace of outlaws, begotten of ravished Sabines”—We cannot look back to the time when our fathers were a horde of uncivilized barbarians! We have arisen amidst the light of civilization. Ours, from the beginning, has been the liberty of reason, unalloyed by licentiousness. We have no privileged orders—no constitutional division line between the rich and the poor—no plebeians—no patricians. Though great was the glory of Greece and of Rome, which lives through the remembrance of their heroes and sages—yet were not their civil institutions far from being perfect? Were they established upon just principles of equity? Indeed, the then rude, ignorant, and contentious state of general society, rendered the formation of such governments impossible. Though a dazzling fame is left behind— their existence—their splendor, has passed away like a rush-light. America has not built upon their systems—and so long as she maintains her original purity of government, can have no fear of their fate. Yet a cautious watchfulness is at all times necessary. From the experience of ages past, we may learn the mutability of all human institutions. Guarding, then, our union, our rights and liberties, with a jealous eye, from outward or internal innovations—neither growing giddy upon the eminence of success, nor despairingly blind amidst threatening dangers—American glory shall never fade, but brighten through the most distant period of revolving time.

When we contemplate—my indulgent friends ! when we contemplate the rise and progress of the Art of Printing, we find, that it has every where assisted Religion, Civilization, and Science, and been promotive—nay, essential to the existence, of civil Liberty.

What was the condition of man, in the first stages of society? Blest with rational faculties—with the powers of language—he could, indeed, communicate his thoughts and sentiments orally to his fellow. But they could not be perpetuated—they would not extend beyond the time and place in which they were uttered. With distant friends he had no communication, and remained ignorant of most transactions, except in his immediate presence. Wandering alone, and in the fields —when he beheld the scenes of nature which surrounded him—his mind was filled with the sublimest contemplations. But they came, and passed away—they glided over his memory, like the transitory rays of a falling star. As the first essay of his invention, he resorted to imitative figures, carved upon tables of stone or wood, representing in shape the object of his ideas. Here commenced the era of symbolic writing, practiced to this day among many eastern nations. Behold the first sages, the astronomers of Egypt, roaming the banks of the Nile and the Niger, gazing in silent wonder at the heavenly system—and tracing, in rude figures, their signs and their circles upon the sands of the shore, etching them upon the rocks of the desert, or upon the rough and unpolished skins of animals.

But soon, amidst progressive genius, arose a nobler art—the invention of letters. We will not stop to inquire, to whom belongs the honor of this invention—whether to Thaut the Egyptian, or Thaut the Phoenician—or whether it was of Divine origin.

The art of writing was indeed slow in progressing—irregular in its system.

Even at its greatest perfection among the ancients, how dull was the advancement of Science. The little splendor which it emitted, was owing to the general darkness by which it was surrounded.

Time would not allow us to trace the progress of Science, in all its different vicissitudes, through the intricacies of obscure ages—even if the speaker were competent to the task. Often have we beheld it bursting forth with brightness, like a meteor of night; and like a nightly meteor, sinking in darkness, leaving behind no traces of its splendor. When Liberty and Science flourished together in Greece and in Rome, a general ignorance nevertheless prevailed. Her sages and philosophers were considered as more than mortal; and even their absurdities were recorded as oracles. But their names and their works have descended, even to enlighten modern ages—many, indeed, which would sink into obscurity, had they not the airy merits of antiquity to buoy them up. The difficulty of obtaining education.in those periods, put it entirely beyond the reach of the common people. Pew—very few, could claim the privilege of becoming learned, and learning was shackled by ostentation and bigotry. Books were seldom seen except in the libraries of the wealthy. If an author committed his productions to writing, it was for the use of himself or his friends. A single transcript would have cost more than the printing of a whole edition, perhaps, at the present day. It was the custom for great men to deliver their effusions orally, often extempore, in public. To this we may, in some degree, ascribe the perfection of oratory among the Greeks and Romans. In the time of Henry the 2nd, of England, the manner of publishing the works of authors, was to have them read over for three days successively, by order of the universities, or judges appointed by the public; and if they met with approbation, copies of them were then permitted to be taken.

Instead of printers, scribes were in those periods employed. All could not then recur to a newspaper, and obtain a correct history of every passing event. They could not apply to a bookstore, and receive the most celebrated and valuable work for a mere trifle. What would be thought now, were a Concordance to cost five hundred dollars? or were two hundred dollars to be given for a common octavo volume? Yet such, we are told, was the rate at which books were sold previous to the discovery of Printing. They were also transferred from one to another, by bond or deed, as we now convey real or landed estate.

Amidst this state of things, how was it possible that science should extensively flourish? What was Greece, in its brightest moments, and Rome, in its Augustan splendor, but dark lanterns, beaming brightly within, yet spreading no radiance around them? Far distant ages were to reap the benefit of their researches; and when they themselves were sunk in darkness, to walk in the reflection of their glory! With means of diffusion so confined, how could infant science withstand the clouds of superstition and ignorance, when ambition and tyranny united against her? When Liberty—amidst those revolutions which history has recorded—again took her flight, Science accompanied her from the earth. And for many centuries we behold her, in different regions, like an electric flash, emit, at intervals, a lurid ray—and like an electric flash, as suddenly disappear!

But the Art of Printing arose as a sun, which should dispel the clouds of Ignorance and Superstition, and shine with a steady luster, enlightening ages, till it should set with the world, in the night of eternity!

We are told that printing, by characters carved on blocks of wood, had been for ages practiced among the Chinese. This invention has never, perhaps, been traced to its origin; and should be called stamping, rather than printing. Had their knowledge of the art tended to enlighten the Chinese ? What advantages have they reaped from it ? Even at the present day, they experience no salutary effects from that divine art, which has tended (where left free to the course of its nature) to enlighten other parts of the world. And how is it possible that they should, when we consider, that they are superstitiously bigoted against every innovation upon ancient custom, and that the alphabet is composed of eighty thousand different characters!

It was the genius of FAUST, which in the fifteenth century unfolded the Art of Printing as at present practiced. Justly was it ranked as the greatest of human inventions. By the ignorant of that age, its source was considered supernatural. When Faust printed his first edition of the Bible, and exposed it for sale in the streets of Paris, he was imprisoned as a necromancer. They were offered as written transcripts. The cheapness at which he sold them, and the fairness —the regularity of the characters—determined at once that he dealt with the devil. And he would have suffered the punishment, inflicted by the pious priestcraft in such cases, had he not divulged the art, which he before had endeavored to conceal.

From that period it began gradually to spread—through different parts of the continent—to England—diffusing beams of light, and chasing before it the clouds of bigotry and ignorance. Genius and Wisdom welcomed its appearance, and hailed it as the star of Jacob— the Art Divine. Religion, Literature, and Science, soon owned its resuscitating power. Truth arose, with renovated vigor—wielding the Press—a powerful engine. At its approach, Superstition trembled, in her dark palace of cruelty and crimes! She could not withstand its force—and Error shrank from the rays of its searching radiance. Here commenced a new era. Learning would no longer be monopolized by a few bigoted, superstitious, designing monks. The effusions of former ages—the discoveries and improvements in the Arts and the Sciences—the moral and metaphysical works of ancient philosophers, were brought forth from the grave of obscurity. Their musty parchments and mouldering inscriptions—dim from the rust of ages, and dark in their signification—were explained in simple terms; stamped in fair and legible characters, and diffused to enlighten a world of inquirers.

But what elucidations are now necessary to convince mankind of the transcendent usefulness of this art? Compare the past with the present. I cannot attempt to pass upon it a merited eulogium; nor will the occasion allow minutely to trace its progress and effects.

What was England, previous to the introduction of printing into that kingdom? Comparatively speaking, a horde of barbarians. It waa there cultivated, hotvever, with greater assiduity than in the country from which it emanated—which is produced as one instance, among many, that genius is seldom rewarded—seldom flourishes, in its native soil. By the wise and the powerful was it patronised; and men of genius, education and wealth, were proud to become its professors. The Press was introduced into universities—established by literary associations, and every where held in the highest veneration. Soon did they perceive the benefit of its encouragement. The means of obtaining knowledge being rendered easy, and brought within the reach of all, the majority became gradually more enlightened. The shackles which bound the mind, and the veil which blinded the eyes of mankind, were rent asunder. They were led to behold the errors which surrounded science—the arts, the bigotry and superstitions which veiled Religion, which perverted that pure fountain into a deadly pool, more pestiferous than the Lake of Sodom; changed the mild breath of peace into the wasting winds which sweep the plains of Java! It was then that designing priestcraft exclaimed, “We must root out printing, or printing will root out us.” But printing was too firmly established. We must, then, said they, “set up learning against learning.” This they did, perhaps with more, but with limited success—for their opponents were armed with Truth and Reason.

Thus too, amidst enlightened inquiry, the original rights of man are unfolded. He learns his own strength—his attributes—the power of his faculties. He perceives the injustice, and despises the oppression of despotism. He catches the spirit of Liberty, and longs for personal —for rational freedom.

jm-tyrannyAlthough the old world has beheld the dawnings of many revolutions, tyranny still maintains its ascendency. By tyranny, the light has been withheld—it has not been suffered to become general. The generous few have yielded, with the ignorant many, to the chains and darkness of designing despots. Their efforts, though they must still await the happy period of a general emancipation—may nevertheless boast of glorious ameliorations. Instance England—Not only as regards literary and scientific acquirements—also, her reformation of government. Not but that her constitutional government is imperfectHot but that it is often grossly perverted in its administration. Yet consider its purity, as compared with former eras. In promoting these, the Art of Printing stands conspicuous. Her historians acknowledge it, and the world bears witness.

But is it not the interest of tyrants to destroy the press? Has it not ever been their policy? France affords a conspicuous example.. There printing has been practised in much perfection. For a while, as relates to science, she had experienced its happy effects. From the same source, Liberty was about to crown her with a glorious blessing. Yet now, we behold a gloomy reverse. The despot who rules her destinies—did he not know that where the Press was left free to enlighten the mind, personal thraldom would not long be submitted to? Yes! And for his decree alone—setting aside his other characteristics, which the speaker would neither depreciate nor overvalue—for his decree alone which destroys the liberty of the Press, he deserves the execration of every virtuous man.

Tyranny, we must ever abhor. It is still tyranny—whether reigning in adverse darkness, or amidst delusive and guilty splendor. And shall we not feel for Fiance, as for the rest of enslaved Europe? How long shall it be thus? Is there not still a spark of that Divine fire, which shall never be extinguished? Soon may it burst forth, and spread its light through every darkened nation! Thus will we hope, as we ardently desire. We would wish them—not a change of oppressors; but a thorough emancipation from every kind of oppression.

Turn once more to America. To the Art of Printing it is, that she in a measure owes her present exalted condition. Perhaps, too, it was the effects of this art, which taught Columbus, that the broadbeaming sun, which seemed to quench its splendor in the western ocean, descended but to light another land.

Our honest forefathers—ever revered be their memories! did they not for a time inherit a portion of ignorance? Did they not sometimes burn a witch, and sometimes suspend a quaker? And shall we not ascribe this to ignorance rather than to wickedness? With few opportunities to discover—with confined means to disseminate it, they still indicated a disposition to encourage truth. Welcome were the first rays of reviving knowledge which shone upon them from the antient world. Now and then a wandering spark from the fire of Science, in the character of eminent exiles, descended among them. These kindled up a flame, which, at no distant period, was to illumine a mighty realm, eminent for genius and learning.

Printing, on its early introduction into this country, met with every encouragement which could have been expected. The Press was considered as an oracle, more – famous than that of ancient Delphi. But far different were its attributes and effects from those of that oracle. It was the province of the Press—not to’ mislead ignorance and confirm folly—but to subserve the cause of truth, to remove error and superstition, to enlighten the mind by every species of knowledge which should exalt it from tlie dust—from the darkness in which it was buried.

Jefferson-Freedom-of-PressIn the records of our Revolution, the Press stands pre-eminent for promoting the cause of Independence. Prom this fountain flowed the pure effusions—the doctrines of freedom, of our heroes and sages. These inspired the American people with a sense of their original rights and privileges as men. These opened the pores of the soul to the infusion of that ardent spirit of Liberty, which was to urge them to the contest, and animate them through the glorious struggle, till it should end in success.

It is not, then, at the power of arms alone that tyranny has to tremble. No! It is the enlightened mind, which knows and feels the dignity of human nature—which scorns to bow beneath the yoke of oppression. Knowing that liberty—rational liberty, is the bequest of God—and that “in his wrath,” as a curse only, did he first place a king upon earth—the man thus enlightened, thus dignified with a sense of feeling and understanding, would sooner yield to death, than submit to the galling chains of slavery.

Science is the sister of Liberty; and Printing, though of later birth, is the guardian of both : They are co-existent and coessential: They are inseparable companions, and can prosper but together. Liberty must preside o’er the Press, and the Press be the watch-tower of Liberty. By Science must the Press be illuminated, and the Press shall disseminate the rays of Science.

Where is the country—where the people, blest with this glorious combination? Let them cherish it, as the core of their heart—for it shall preserve them through every revolution of destroying time. It shall preserve them unmoved, amidst falling kingdoms and dissolving empires; and exalt them to the proudest eminence of happiness and glory! Where, then, shall we turn our eyes? To Europe?— They thence revolt, with indignant disappointment; nor will again recross the ocean. But here—here in our own Columbia, we behold that favorite of heaven. Here, the Press has flourished free, advancing Liberty and Science. And here may it ever—ever remain unshackled!

In America, we enjoy the Freedom Op The Press in its greatest purity. Who would contract its limits, or rob it of a privilege? But, does it not at times border upon licentiousness? Shall it be left free, then, to pervert truth, and subserve the cause of falsehood—to disseminate false doctrines in religion and politics? What! would we, that the sun were extinguished from the firmament, because the serpent basks as freely in its beams as the swallow?—because it Warms alike to vegetation the noxious weed as the nutritious plant? Would we, that the dews of heaven should cease to fall, because they moisten alike the Bohon Upas, as the fragrant bosom of the rose? No! with the antidote before us, why should we fear the poison? A free privilege of inquiry, and unbiassed judgment where the mind is thus enlightened, Truth will ever, in the end, prevail. The constituted laws of our country define and punish libellous and treasonable publications: With all other discussions, they have no right to interfere. And the first blow which is aimed at the Freedom of the American Press, would be the step by which a tyrant would attempt an ascent to power. But it would prove a stumbling block, which would for ever prostrate him in the dust.

Look round upon our country. We behold learning every where encouraged. Not only the wealthy, but the poor partake of its blessings. Although young in existence, America transcends in general knowledge, if not in classical literature and useful science, every other nation upon the face of the earth. If America can boast of few literary productions—if her writers, her poets, her philosophers, her artists, have not arisen to superior eminence, it has not been from a poverty of genius. It may be ascribed to other causes. Having a wide field open before them, they do not confine themselves, (as did antient researches) to a particular branch of the arts or sciences. Probably, too, in a nation so young, where an equality prevails, and a general improvement is the prominent object, emulation does not so much exist. Shining talents are more seldom brought forward, and perhaps too little encouraged. But, who shall say that America is without native genius? We will produce Rittenhouse, and the whole celestial system shall bear witness. We will mention West, and Nature herself shall appear in his behalf. We will point out FRANKLIN, and the lightning of heaven shall descend to convince them! A Paine, a Barlow, and a Rush, have lately sought the tomb, whose worth—whose works shall stand recorded to ages. We have, also, many living instances of native genius. We will not name them. They speak for themselves, and to the honor of their country.

The encouragement given to common schools, and to periodical publications, does honor to the American people. It tends to hasten them, by a dignified advancement, to a glorious pre-eminence—a preeminence to which they may justly aspire. In every village—in every country town—and often amidst the dark wilderness, where culture has scarce lopped the branches of the pine to admit the light of heaven—we behold temples arising, dedicated to Knowledge. In more populous places, and in cities, are charitable institutions, for instructing the poor and the orphan. Seminaries, also, for the higher branches of education, the eminence of which would not disgrace the proudest countries of the old world, where the arts and the sciences have flourished for ages.

Throughout almost every part of the United States, where population will insure patronage, newspapers are established, whose columns “blend amusement with instruction”—which convey occasional literary morceaus, with political and miscellaneous information.

We have also numerous periodical publications, devoted exclusively to literature, science, and the arts. Many of these possess a spirit and purity, which does honor to the abilities of their conductors and to the genius and literary character of the nation. But, do these meet with merited encouragement ? We might venture to affirm, that they are no where too extensively patronized—not too well rewarded.

These, my friends, are the blessings of Freedom—purified by science, diffused through the Divine medium of the Press.

It will not be supposed that America can yet boast extensive practical or mechanical improvement in the Art of Printing. She is, indeed, making rapid advancements. American materials will be found, perhaps, inferior to none in elegance, if not in durability. The typefounderies of New York and Philadelphia have produced specimens, both plain and fancy letter, which will long remain unrivalled. Amidst the disk of inexperience which has shrouded our firmament, we have beheld bright Stars appearing. Like day-stars, they forebode increasing light, a meridian splendor to American typographic-mechanical geniMS. Many works have lately issued from the American Press, unsurpassed in neatness and correctness of execution. And the sons of Faust, of Franklin and of Freedom, may look forward with pride to a no distant period, when that Press shall be as distinguished for the mechanical elegance, as for the truth and chasteness of its emanations. For Science and the Arts have declared, that “where Liberty dwells, there is our Country.”

Respected Brethren!

Thus has the speaker essayed to discharge the duty assigned him. To sum up the substance or intent of his discourse, you have but to repeat this motto: “Printing, the source of Knowledge.” We may then add, “The Press, the cradle of Science, the nurse of Genius, and the shield of Liberty.” Considering, then, ourselves as a profession, we have one prominent duty to perform: That is, to emulate, .as far as we are able, the examples of our great prototype, our American father, Franklin. Next to love and to serve our country, his first maxim was, “Honor thy profession.” Unlike many who presume to advise, he ever practised the duties he inculcated. Often has he exemplified the words of the good Plutarch, who was once a street scavenger in his native village: “It is not the station which dignifies the man; but the man which dignifies a station.”

As a Society, therefore, let our pride be, to preserve our existence. Let us endeavor by all honorable means to extend our influence, and to promote the objects for which we are united. Associations, when originating in laudable motives, are ever commendable. Such an origin this Society may boast. We would not estimate its merits by the miser’s standard, the weight of its treasury-box: In this balance, it would not be “found wanting.” Perhaps it may not be altogether perfect in its nature. It might more extensively embrace literary and other improvements, and promote various interests of our profession. It may be capable of much improvement. To whom shall it look, then, but to those who are already its members, and to those whose duty it is to unite their efforts? Brethren of the art—you whose names are not found upon the records of this Society—by what incitement shall I address you? Having no private motives, my words shall be few, yet spoken in sincerity. The-warm hand of fellowship is tendered. Do„you want arguments to convince your reason—invitations and appeals to prompt your decision? Have we not all one common interest? And by our united zeal, cannot that interest be successfully promoted, extended and ennobled?

An aged sire, who was fast approaching to dissolution, called his seven sons around him. He gave them a bundle of rods, which he desired them to break, They took them—tried in succession—but as one could effect it. “Give them to me,” said the father. Separating the rods, he took them singly, and soon acomplished the object. “Thus, (said the venerable sage) while you remain united in the bonds of brotherly love, you may defy the frowns of fortune, and the power of your enemies. But by division, by contending passions and adverse interests, you invite misfortune, are exposed to the malice of the world, and incur destruction.”

This is an antient allegory. Apply it as we will—either to our own little professional community, or to the more high and important relations of the republic.

Here will I leave each portion of the subject. May our own dictates—the emotions of our bosoms, inspire to worthy conduct, and ensure happiness and prosperity.

My Friends!

The speaker will now render his acknowledgments for your indulgence. To this occasion he has not done justice. He feels—he knows it. But, he has not addressed you from motives of personal fame—not for popular applause—but to subserve an immediate duty of the day. Youth—inexperience—want of health, genius, or abilities—or whatever has tended to retard that fire and that eloquence which should distinguish an orator—he oners no excuse in extenuation. He were even satisfied with meriting your charity. It is the irst time he has spoken in public—It will be the last time, perhaps, he shall have the honor of addressing any of this assembly. But often, he hopes, we may meet to perpetuate this anniversary, under prospects more auspicious to all individually, and to our country. And when we shall pass away—when posterity shall walk, if not weep, over our graves—may the liberties we inherit be transmitted bright and unimpaired to our descendants, till the sun shall cease to shine, and the world itself shall dissolve.

Soon, brethren, are we to assemble in the hall of festivity. There, while the wine sparkles in the glass, and the song and the toast resound—may good humor preside o’er the scene, and brighten every countenance. May we remember, that it is not for ourselves alone that we rejoice. May the sentiments of our hearts unite, and the affections of our bosoms expand rejoicing, with harmony, as becomes friends—with reason, as becomes men—with freedom, as becomes Americans!

See also: Resistance to Tyrants is Obedience to God
Political Evils and the Remedy for them by Noah Webster 1834
LIBERTY OF THE PRESS by Senator Edward D. Baker 1811-1861
The Doctrine of Fascism, Fascism Defined by Benito Mussolini
The Failure of Marxism and Socialism

THE LIBERTY OF THE PRESS by Charles F. Partington 1836

Amendment 1; United States Constitution – Freedom of Religion, Press, Expression: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


When contemplating the liberties, freedoms and protections afforded United States Citizens by the Constitution and Bill of Rights: Remember the Free Exercise of Religion was the first to be protected by the Framers. The Religion Clause in the First Amendment was meant to keep government out of religion, not to keep religion out of the public square or government.

Remember also when one right, liberty, or freedom is under attack, they are all under attack, when one is in jeopardy, they are all in jeopardy! The Second Amendment is meant to guarantee the First Amendment!

THE LIBERTY OF THE PRESS by Charles F. Partington 1836

This great bulwark of national as well as individual freedom is now better understood, and its rights admitted, than at any previous period in the history of the world. Properly speaking, it means the right that every man possesses to print whatever he chooses, though without at all taking from the laws the power of punishing him for the abuse of that liberty.

To make the liberty of the press real, two things are essential; 1, that the laws against its licentiousness should be precise and clear; 2, that they should only punish what is really injurious to the public welfare.

The laws against treason under Tiberius, against heresy under the inquisition, against irreverence under Catharine II., against conspiracy under the convention, against infringements of the royal dignity, and contempt of government in various states, are very indefinite, and allow the greatest tyranny.

The laws for punishing abuses of the press are generally directed against attacks upon the government or its officers, upon the reputation of individuals, and upon good morals and religion. The latitude allowed to the press of course will vary with circumstances. A discussion will be permitted in England which would be punished in Austria. Discussions of certain religious topics are considered in one age blasphemous, while another age esteems them innocent. As to charges affecting the character of governments and individuals, we may observe that the freer a government is, the less sensitive it is, and the less sensitive are the people who live under it. No governments arc so indifferent to being publicly spoken of as the British and American, whilst the Prussian code contains many laws against verbal offenses. As the liberty of speech is unquestioned, and printing only gives permanence and circulation to what might be freely spoken (newspapers, for instance, take the place of speeches and conversations in the forums of the petty states of antiquity), the right of printing rests on the same abstract grounds as the right of speech; and it might seem strange to a man unacquainted with history, that printing should be subjected to a previous censorship, as it is in most states, any more than speaking, and that the liberty of the press should be expressly provided for in the constitutions of most free states. But when we look to history, we find the origin of this, as of many other legislative anomalies, in periods when politics, religion, and individual rights were confusedly intermingled. It is only since men’s views of the just limits of government have become clearer, that the liberty of the press has been recognized as a right j and to this country is the world mainly indebted for the establishment of this principle, as of so many other bulwarks of freedom, though the Netherlands preceded us in the actual enjoyment of the liberty of the. press.

When we consider the practical effect of a censorship, it is no more defensible on that ground than on the ground of abstract right. In what times and countries have morals and religion, and the reputation of individuals, been more outrageously attacked through the press, than in those in which the censorship was established? We are far from considering the liberty of the press as without evil consequences ; but the censorship does not prevent these consequences, while it destroys the numberless benefits of an unshackled press. But the liberty of the press, properly considered, is not to be treated as a mere question of political expediency. Liberty of conscience and liberty of thought are rights superior in importance to any objects which fall under the head of expediency.

Representative governments are empty forms without the liberty of the press. The free discussion of all political measures, and of the character of public officers, is of much more consequence than the freedom of debate in legislative assemblies. A parliament would be a comparatively small chock upon a government, were it not for the liberty of the press. In fact, it might easily be made an instrument for enforcing oppressive measures; since a government would find little difficulty in gaining over a majority of such a body by the motives of ambition and avarice, were it not for the control exercised over legislative bodies by a free press. Without this, publicity of discussion in legislative assemblies would be of little avail. In fact, representative governments, without the liberty of the press, are a mockery. This liberty is, indeed, the great safeguard of all others; and a whole dynasty was lately prostrated in a struggle with this formidable power. Polignac’s Report, which caused the revolution in France of 1830, will ever be memorable in the history of the liberty of the press, as proving the difficulty or impossibility of a minister’s ruling in opposition to public opinion in a country where the press is free. In this country, the liberty of the press, soon after printing was introduced, was regulated by the king’s proclamation?, prohibitions, charters of licence, &c, and, finally, by the court of star-chamber. The long parliament, after their rupture with Charles I., assumed the same power. The government of Charles II. imitated their ordinances, and the press did not really become free till the expiration of the statutes restricting it in 1694, after which it was found impossible to pass new laws in restraint of it, and it has remained free ever since. A licence is required both in France and this country. Here it is easily obtained; but a late law in France, since the revolution of July, 1830 has required very high security.

See also: LIBERTY OF THE PRESS by Senator Edward D. Baker 1811-1861

Bivouac Of The Dead By Theodore O’Hara 1847

Bivouac Of The Dead by Theodore O’Hara; Written in memory of the Kentucky troops killed in the Mexican War – 1847

Portions of this poem are inscribed on placards throughout Arlington, as well as on the McClellan gate there.

Bivouac Of The Dead


The muffled drum’s sad roll has beat
The soldier’s last tattoo;
No more on Life’s parade shall meet
That brave and fallen few.
On fame’s eternal camping ground
Their silent tents to spread,
And glory guards, with solemn round
The bivouac of the dead.

No rumor of the foe’s advance
Now swells upon the wind;
Nor troubled thought at midnight haunts
Of loved ones left behind;
No vision of the morrow’s strife
The warrior’s dreams alarms;
No braying horn or screaming fife
At dawn shall call to arms.

Their shriveled swords are red with rust,
Their plumed heads are bowed,
Their haughty banner, trailed in dust,
Is now their martial shroud.
And plenteous funeral tears have washed
The red stains from each brow,
And the proud forms, by battle gashed
Are free from anguish now.

Normandy Cemetery in France where they buried the Americans who gave their all saving Europe from the atrocities of Hitler, the Nazi's and their allies.

Normandy Cemetery in France where they buried the Americans who gave their all saving Europe from the atrocities of Hitler, the Nazi’s and their allies.

The neighing troop, the flashing blade,
The bugle’s stirring blast,
The charge, the dreadful cannonade,
The din and shout, are past;
Nor war’s wild note, nor glory’s peal
Shall thrill with fierce delight
Those breasts that nevermore may feel
The rapture of the fight.

Like the fierce Northern hurricane
That sweeps the great plateau,
Flushed with triumph, yet to gain,
Come down the serried foe,
Who heard the thunder of the fray
Break o’er the field beneath,
Knew the watchword of the day
Was “Victory or death!”

Long had the doubtful conflict raged
O’er all that stricken plain,
For never fiercer fight had waged
The vengeful blood of Spain;
And still the storm of battle blew,
Still swelled the glory tide;
Not long, our stout old Chieftain knew,
Such odds his strength could bide.

Twas in that hour his stern command
Called to a martyr’s grave
The flower of his beloved land,
The nation’s flag to save.
By rivers of their father’s gore
His first-born laurels grew,
And well he deemed the sons would pour
Their lives for glory too.

For many a mother’s breath has swept
O’er Angostura’s plain —
And long the pitying sky has wept
Above its moldered slain.
The raven’s scream, or eagle’s flight,
Or shepherd’s pensive lay,
Alone awakes each sullen height
That frowned o’er that dread fray.


Sons of the Dark and Bloody Ground
Ye must not slumber there,
Where stranger steps and tongues resound
Along the heedless air.
Your own proud land’s heroic soil
Shall be your fitter grave;
She claims from war his richest spoil —
The ashes of her brave.

Thus ‘neath their parent turf they rest,
Far from the gory field,
Borne to a Spartan mother’s breast
On many a bloody shield;
The sunshine of their native sky
Smiles sadly on them here,
And kindred eyes and hearts watch by
The heroes sepulcher.

Rest on embalmed and sainted dead!
Dear as the blood ye gave;
No impious footstep here shall tread
The herbage of your grave;
Nor shall your glory be forgot
While Fame her record keeps,
For honor points the hallowed spot
Where valor proudly sleeps.

Yon marble minstrel’s voiceless stone
In deathless song shall tell,
When many a vanquished ago has flown,
The story how ye fell;
Nor wreck, nor change, nor winter’s blight,
Nor time’s remorseless doom,
Can dim one ray of glory’s light
That gilds your deathless tomb.

See also:
Founders & forefathers pledged their Sacred Honor, what did they mean?
Memorial Day Tribute to the Unknown Soldiers
MEMORY’S WREATH by George B. Griffith


Remember the Fallen

Remember the Fallen

IN MEMORY! By Luella Curran

Bring ye blossoms of the May,
For the brave beloved dead;
Tender memories rise to-day
O’er each fallen hero’s bed.

Wave the starry symbol dear,
They so loved and died to save,
O’er their rest, let memory’s tear
Consecrate the patriot’s grave.

Peace, fair child of victory,
Twines the olive with the palm—
Wed for them eternally,
Of their noble wounds the balm.

Thou, their country, proud and free,
Grateful bow thy star-crowned head;
They who shape thy destiny
Thrill at thy majestic tread!

Bring ye blossoms of the May,
Strew each humble soldier’s grave;
Liberty shall kneel to-day.
Honoring the true and brave.

Published in Good Housekeeping 1895.


Field Cross


OUR COUNTRY by John G. Whittier 1895



The following poem, by Mr. John G. Whittier, was read at Hawthorne’s old home in Concord, at a reception given by Mr. and Mrs. D. Lothrop in honor of Mrs. John A. Logan. Mr. Whittier was obliged to decline an invitation to the reception, and his letter of regret was accompanied by this poem, written for the occasion.

Our thought of thee is glad with hope,
Dear country of our love and prayers;
Thy way is down no fatal slope,
But up to freer sun and airs.
Tried as by furnace fires, and yet
By God’s grace only stronger made;
In future tasks before thee set
Thou shalt not lack the old-time aid.

The fathers sleep, but men remain
As true and wise and brave as they;
Why count the loss without the gain:
The best is that we have to-day.

No lack was in the primal stock,
No weakling founders builded here;
There were the men of Plymouth Rock,
The Puritan and Cavalier;

And they whose firm endurance gained
The freedom of the souls of men,
Whose hands unstained in peace maintained
The swordless commonwealth of Penn.

And time shall be the power of all
To do the work that duty bids:
And make the people’s Council Hall
As lasting as the Pyramids.

Thy lesson all the world shall learn,
The nations at thy feet shall sit;
Earth’s furthest mountain tops shall burn
With watch-fires from thine own uplit.

Great, without seeking to be great
By fraud or conquest—rich in gold.
But riches in the large estate
Of virtue which thy children hold.

With peace that comes of purity,
And strength to simple justice due.
So owns our loyal dream of thee,.
God of our fathers! make it true.

Oh, land of lands! to thee we give
Our love, our trust, our service free;
For thee thy sons shall nobly live,
And at thy need shall die for thee.

MEMORY’S WREATH by George B. Griffith

memorial-day2Memorial or Remembrance Day was originally began to honor the dead of the War between the States.





Memory’s wreath of white and red,
Of purest blue and green is spread,
Today, above the patriot dead,
In songs and story blest;
Nor do we grudge the fairest flowers
That oped and bloomed ‘neath Southern showers.
On this Memorial Day of ours,
Laid where the foemen rest.

For Peace has silenced bitter Hate,
The blue and gray together mate,
And by each other’s hearths have sate
Since the long strife was o’er.
Thank God for this! and from this day
May love and prayer keep clear the way,
And make us one in heart for aye—
One country evermore!

It was a woman’s tender thought;
Her slender hand the first wreath wrought,
And she a grateful Nation taught
To garland thus the dead;
So long as gallant knight shall ride
To win by valor lovely bride,
And music stirs the true and tried,
Shall this of her be said!

And when we vaunt of greatest fray.
We’ll ne’er forget that far away
Our wives and mothers prayed each day,
In safety God would keep
The soldier clad in gray or blue.
As comes Memorial Day anew
Let woman’s hand the flowers strew
Where battle heroes lie.
-George B. Griffith in Christian at Work.

THE STARRY FLAG By Stockton Bates


From proud Atlantic’s surging waves
To where the broad Pacific lies,
And playfully the bright sand laves
Beneath clear, sunny skies;

And far along Canadian lines,
The rocky borders of the land,
To where the Gulf in beauty shines,
And breaks upon the strand;

From Alleghany’s crested mounts,
And on the Rocky’s summits gray,
Where brightly, snow-fed crystal founts
Are welling forth alway.

On Mississippi’s mighty tides,
And on Ohio’s silver stream,
Or where the Susquehanna glides,
Or Schuylkill’s ripples gleam;
Where Delaware, with current grave,
Is sweeping outward to the sea;
In every land, on every wave,
The starry Flag floats free!

And through all time this flag above,
In triumph o’er oppression’s holds,
Shall, in the light of peace and love,
Unroll its glorious folds.
— One Hundred Choice Selections.




Strong men fast asleep,
With coverlets wrought of clay,
Do soft dreams over you creep
Of friends who are here to-day?
Do you know, O men low lying
In the hard and chilly bed,
That we, the slowly dying,
Are giving a day to the dead?
Do you know that sighs for your deaths
Across our heart-strings play,
E’en from the last faint breaths
Of the sweet lipped month of May?
When you fell, at duty’s call,
Your fame it glittered high,
As leaves of the somber fall
Grow brighter, though they die;
Men of the silent bands,
Men of the half-told days,
Lift up your specter hands
And take our hearts bouquets.

Women whose rich graves deck
The work of strife’s red spade,
Shining wrecks of the wreck
This tempest of war has made,
You whose sweet, pure love
Round every suffering twined,
Whose hearts like the sky above
Bent o’er all human kind.
Who walked through hospital streets
‘Twixt white abodes of pain,
Counting the last heart beats
Of men who were slowly slain,
Whose deeds were so sweet and gracious,
Wherever your light feet trod,
That every step seemed precious,
As if it were that of God;
Whose eyes so divinely beamed,
Whose touch was so tender and true.
That the dying soldier dreamed
Of the purest love he knew.
O, martyrs of more than duty!
Sweet-hearted woman-braves!
Did you think in this day’s sad beauty
That we could forget your graves?


Men who fell at a loss,
Who died ‘neath failure’s frown,
Who carried strife’s red cross
And gained not victory’s crown,
Whose long fight was so brave
That it won our sad applause,
Who sleep in a hero’s grave,
Though clutched by the corpse of a
Sleep sweet, with no misgiving,     [cause.
By bitter memories fed,
That we, your foes while living,
Can be your foes when dead.
Your fault shall not e’en be spoken—
You paid for it on the pall;
The shroud is forgiveness’ token,
And death makes saints of all.

Men of the dark-hued race,
Whose freedom meant—to die—
Who lie with pain wrought face
Upturned to the peaceful sky.
Whose day of jubilee,
So many years o’erdue,
Came—but only to be
A day of death to you.

Men who died in sight
Of the long-sought promised land.
Would that these flowers were bright
As your deeds are true and grand.
Boys, whose glossy hair
Grows gray in the age of the grave,
Who lie so humble there
Because you were strong and brave;
You whose lives cold set
Like a winter’s sun ill-timed,
Whose hearts ran down ere yet
The noon of your lives had chimed—

Do you know your fathers are near,
The wrecks of their pride to meet?
Do you know your mothers are here
To throw their hearts at your feet?
Do you know the maiden hovers
O’er you with bended knee.
Dreaming what royal lovers
Such lovers as you would be?
Ruins of youthful graces,
Strong buds crushed in the spring,
Lift up your phantom faces
And see the flowers we bring!

Sleep well, O sad-browed city!
Whatever may betide,
Not under a nation’s pity
But mid a nation’s pride.

The vines that round you clamber
Brightest shall be and best;
You sleep in the honor chamber,
Each one a royal guest.

And aye in realms of glory
Shine bright your starry claims—
Angels have heard your story,
And God knows all your names.
— Will Carleton

Memorial Day Tribute to the Unknown Soldiers

Tomb of the Unknown

UNKNOWN PATRIOTS: In some cemeteries lie ten thousand, in others twenty thousand, of the men who died for the nation. An iron tablet records the name of the soldier and the battle in which he died. Often, alas! the record is merely that of “Unknown Soldier.” Over the graves floats the flag which those below loved so well. Nothing in America is more touching than her national cemeteries. So much brave young life given freely, that the nation might be saved! So much grateful remembrance of those who gave this supreme evidence of their devotion!

Normandy2Where’er we meet the friends once fondly cherished.
And hands all warm with old affection take,
Breathe ye with love the names of those who perished
And sleep in graves unknown for freedom’s sake.


Normandy Cemetery in France where they buried the Americans who gave their all saving Europe from the atrocities of Hitler, the Nazi's and their allies.

Normandy Cemetery in France where they buried the Americans who gave their all saving Europe from the atrocities of Hitler, the Nazi’s and their allies.

Peace! Let us mingle love’s sweet tears with pity’s
For those who bought the heritage we own,
Who gave their all, and in death’s silent cities
Have but the nameless epitaph, “Unknown”
Rest in peace, ye honored martyrs of liberty!




Tomb of the Unknown

Alexanders may weep for more worlds to conquer; Caesars may wage bloody wars and bring subjugated princes to crown their triumphal entries into the “Eternal City”; Napoleons may sweep with the besom of destruction all Europe, from the Tuileries to the Kremlin;but all the treasure expended and all the blood spilled in winning their brilliant conquests, are not of so much worth in the sight of God as the humblest of your nameless lives freely offered in defense of your country. While the spirit that animated you shall dwell in the hearts of the people, our broad continent shall be your monument. “They died for their country’‘ shall be your noblest record on the pages of history.—Butterworth’s Young Folk’s History of America.

See also:
We The People Never Forget September 11, 2001
History of the Cross in America
For our Troops (Tribute)


The Patriots Remembrances On Decoration Day, May 30, 1895

“Those were days ever to be remembered, when strong men stood in their fields and wept.”—H. Butlerworth.


Sweet spring is in the air, good wife,
Bluer sky appears;
The robin sings the welcome note
He sung in other years.
Twelve times the spring has oped the rills,
Twelve times has autumn sighed
Since hung the war clouds o’er the hills
The year that Lincoln died.

The March wind early left the zone
For distant northern seas,
And wandering airs of gentle tone
Came to the door-yard trees;
And sadness in the dewy hours
Her reign extended wide
When spring retouched the hill with flowers
The year that Lincoln died.

We used to sit and talk of him,
Our long, long absent son;
We’d two to love us then, dear wife,
But now we have but one.
The springs return, the autumns burn,
His grave unknown beside;
They laid him neath the moss and fern
The year that Lincoln died.

One day I was among the flocks
That roamed the April dells,
When floating from the city
Came the sound of many bells,
The towns around caught up the sound,
I climbed the mountain side,
And saw the spires with banners crowned
The year that Lincoln died.

I knew what meant that sweet accord,
That jubilee of bells,
And sang an anthem to the Lord
Amid the pleasant dells.
But when I thought of those so young
That slept the farms beside
In undertones of joy I sung,
The year that Lincoln died.

And when the tidings came, dear wife,
Our soldier boy was dead,
I bowed my trembling knee in prayer,
You bowed your whitened head.
The house was still, the woods were calm.
And while you sobbed and cried
I sang alone the evening psalm
The year that Lincoln died.

I hung his picture ‘neath the shelf,
It still is hanging there;
I laid his ring where you yourself
Had put a curl of hair.
Then to the spot where willows wave
With hapless steps we hied,
And “Charley’s” called an empty grave,
The year that Lincoln died.

The years will come, the years will go,
But never at our door
The fair-haired boy we used to meet
Will smile upon us more.
But memory long will hear the fall
Of steps at eventide,
And every blooming year recall
The year that Lincoln died.

One day I was among the flocks
That roamed the April dells.
When at the noonday hour I heard
A tolling of the bells.
With heavy heart and footsteps slow
I climbed the mountain side
And saw the blue flag hanging low
The year that Lincoln died.

Ah! many a year, ah! many a year
The birds will cross the seas,
And blossoms fall in gentle showers
Beneath the door-yard trees;
And still will tender mothers weep
The soldiers’ grave beside,
And fresh in memory ever keep
The year that Lincoln died.

Where many sow the seed in tears
Shall many reap in joy.
And harvesters in golden years
Shall bless our darling boy.
With happy homes for other eyes
Expands the future wide;
And God will bless our sacrifice
The year that Lincoln died.
Butterworth’s Young Folk’s History of America.

A MOTHER’S PICTURE By Edmund Clarence Stedman


A MOTHER’S PICTURE By Edmund Clarence Stedman

She seemed an angel to our infant eyes!
Once, when the glorifying moon revealed
Her who at evening by our pillow kneeled —
Soft-voiced and golden-haired, from holy skies
Flown to her loves on wings of Paradise —
We looked to see the pinions half-concealed.
The Tuscan vines and olives will not yield
Her back to me, who loved her in this wise,
And since have little known her, but have grown
To see another mother, tenderly,
Watch over sleeping darlings of her own;
Perchance the years have changed her: yet alone
This picture lingers: still she seems to me
The fair, young Angel of my infancy.

BEFORE IT IS TOO LATE By George Bancroft Griffith

If you have a gray-haired mother
In the old home far away,
Sit you down and write the letter
You put off from day to day.
Don’t wait until her weary steps
Reach Heaven’s pearly gate,
But show her that you think of her,
Before it is too late.

If you have a tender message,
Or a loving word to say,
Don’t wait till you forget it,
But whisper it to-day.
Who knows what bitter memories
May haunt you if you wait?
So make your loved one happy
Before it is too late.

The tender word unspoken,
The letters never sent,
The long forgotten messages,
The wealth of love unspent;
For these some hearts are breaking,
For these some loved ones wait;
Show them that you care for them
Before it is too late.

MOTHER AND CHILD By William Gilmore Simms


MOTHER AND CHILD By William Gilmore Simms

The wind blew wide the casement, and within —
It was the loveliest picture! — a sweet child
Lay in its mother’s arms, and drew its life,
In pauses, from the fountain,— the white round
Part shaded by loose tresses, soft and dark,
Concealing, but still showing, the fair realm
Of so much rapture, as green shadowing trees
With beauty shroud the brooklet. The red lips
Were parted, and the cheek upon the breast
Lay close, and, like the young leaf of the flower,
Wore the same color, rich and warm and fresh:
And such alone are beautiful. Its eye,
A full blue gem, most exquisitely set,
Looked archly on its world,— the little imp,
As if it knew even then that such a wreath
Were not for all; and with its playful hands
It drew aside the robe that hid its realm,
And peeped and laughed aloud, and so it laid
Its head upon the shrine of such pure joys,
And, laughing, slept. And while it slept, the tears
Of the sweet mother fell upon its cheek,—
Tears such as fall from April skies, and bring
The sunlight after. They were tears of joy;
And the true heart of that young mother then
Grew lighter, and she sang unconsciously
The silliest ballad-song that ever yet
Subdued the nursery’s voices, and brought sleep
To fold her sabbath wings above its couch.

MOTHER By Kathleen Norms, 1911

As years ago we carried to your knees
The tales and treasures of eventful days,
Knowing no deed too humble for your praise,
Nor any gift too trivial to please,
So still we bring, with older smiles and tears,
What gifts we may, to claim the old, dear right;
Your faith, beyond the silence and the night,
Your love still close and watching through the years.

MOTHERS AND MOTHERHOOD From Best Thoughts of Best Thinkers

There is a Jewish saying that “God could not be everywhere and therefore he made mothers.”

While this saying may conflict with our ideas concerning omnipresence as a necessary attribute of Deity, it nevertheless voices an essential truth, that mothers, as the representatives of the fecundity of nature, sustain the closest relation to God as his chosen channel through which to manifest the highest forms of creative power. “The fatherhood of God, the motherhood of nature and the consequent brotherhood of man,” is an expression giving motherhood almost coordinate rank with God, and harmonizes perfectly with Bulwer Lytton’s well known expression, “Nature’s loving proxy, the watchful mother.” The “proxy” idea grows out of the fact that the mother’s instincts, acting as they do independently of and prior to reason, and being superior to and disconnected from the understanding, are in close and vital touch with the infinite source of all wisdom, and hence a substitute for God within the limitations of their function.

While it is true that highly educated mothers have written most feelingly of motherhood it is also true that the best thinkers among men in all ages have acknowledged the supremacy of the maternal tie, often ascribing divine attributes to her surpassing tenderness. Michelet says, “It is the general rule, that all superior men inherit the elements of their superiority from their mothers.” To this add the words of the immortal Lincoln, “All that I am, or hope to be, I owe to my angel mother”; and the tribute of John Quincy Adams, “All that I am my mother made me.” Such acknowledgments can be duplicated over and over again from the literature of all countries and all times. Thus Napoleon, “The future of the child is always the work of the mother”; and again, Napoleon, “Let France have good mothers and she will have good sons.”

Longfellow drawing his inspiration from the contemplation of motherhood says, “Even He that died for us upon the cross, in the last hour, in the unutterable agony of death, was mindful of His mother, as if to teach us that this holy love should be our last worldly thought, the last point of earth from which the soul should take its flight for heaven.”

OLD MOTHERS By Charles S. Ross

OLD MOTHERS By Charles S. Ross

I love old mothers — mothers with white hair,
And kindly eyes, and lips grown softly sweet,
With murmured blessings over sleeping babes.

There is a something in their quiet grace
That speaks the calm of Sabbath afternoons;
A knowledge in their deep, unfaltering eyes,
That far outreaches all philosophy.

Time with caressing touch, about them weaves
The silver-threaded fairy-shawl of age,
While all the echoes of forgotten songs
Seemed joined to lend a sweetness to their speech.

Old mothers! — as they pass with slow-timed step,
Their trembling hands cling gently to youth’s strength.
Sweet mothers! as they pass, one sees again,
Old garden walks, old roses, and old loves.



Fain, O my child, I’d have thee know,
The God whom angels love:
And teach thee feeble strains below,
Akin to theirs above.

O when thy lisping tongue shall read
Of truths divinely sweet,
May’st thou, a little child indeed,
Sit down at Jesus’ feet.

I ‘ll move thine ear, I ‘ll point thine eye —
But ah! the inward part —
Great God, the Spirit! hear the sigh
That trembles through my heart!

Break, with thy vital beam benign,
O’er all the mental wild!
Bright o’er the human chaos shine,
And sanctify my child.

By Mrs Vokk in Hymns for Mothers and Children, Volume 1

“Mother is a sacred name! Where is the heart in which it does not awaken the most affectionate recollections and tender emotions; A mother’s bosom has been the sanctuary where we have fled in all our infant troubles; a mother’s care has preserved us amidst the helplessness of infancy, and the dangers of childhood. A mother’s influence, in the formation of society, is greater than that of the senator who framed its laws. We hail, therefore, every effort to guide females in their duties; to impress them with their responsibility; and to awaken them to unremitting diligence in the onerous engagements of the important relations they sustain. ~ Excerpt from Mother’s Magazine, Volume 1 published 1833