Kitabı oku: «A Collection of Essays and Fugitiv Writings», sayfa 21
The Jews, for their infidelity, had been considered by the Christians az outcasts on earth. Severe laws were enacted against them in almost every country; depriving them of the rights of citizens, and forbidding them to hold real estates. Proscribed and insulted, the poor Jews were compelled to turn their hand against every man in their own defence. They commenced strolling traders and bankers, and by theze meens commanded a large share of the money in every kingdom.
With this command of cash, the Jews very justly compensated themselves for the injuries they suffered from the tyrannical laws which existed against them. They loaned money at the highest rate of interest they could obtain. Hence the general karacter of the Jews, and the prejudice against them that survives to this enlightened period.
It iz very probable, that before the discovery of the American mines, money waz so scarce in Europe, that a few brokers in eech kingdom might engross such a share, az to hav it in their power to oppress peeple. This waz evidently the case in England, about the reign of Edward I, and the parliament thought proper to interfere and restrain the evil. Laws against usury were doutless necessary and useful at that time. But since the world haz been filled with gold and silver from South America, and nations hav opened an intercourse with eech other, there never can be a want of specie, where a country can supply produce enough to exchange for it. It haz become a mere fluid in the commercial world; and in order to obtain a supply, in a country abounding with produce and manufactures, the legislature haz nothing to do, but let it bear its own price; let it command its own valu, ether at interest, or in exchange for commodities.
Laws against usury therefore I consider az originating ether in the necessity of the times, which long ago ceesed, or in a bigotted prejudice against the Jews, which waz az barbarous formerly, az it iz now infamous. Laws restraining the interest of money I now consider, in the same light, az I do laws against freedom of conscience. And were it not for the force of habit, I should az soon expect to see a modern legislature ordering a pious sectary to the stake for hiz principles, az to see them gravely passing a law, to limit the profit on the use of hiz money. And unless the legislatures of this enlightened age should repeel such laws, and place money on a footing with other property, they will be considered az accessory to a direct violation of the deerest rights of men, and will be answerable for more frauds, perjuries, treechery and expensiv litigations, than proceed from any other single cause in society. I am so firmly persuaded of the truth of theze principles, that I venture to predict, the opinions of men will be changed in less than half a century, and posterity will wonder that their forefathers could think of maintaining a position so absurd and contradictory, az that men hav no right to make more than six per cent. on the loan of money, while they hav an indefeezable right to make unlimited profit on their money in any other manner. They will vew laws against usury in the same light that we do the inquisition in Spain, the execution of gypsies and witches in the last century, or thoze laws of England which make 100l. annual income necessary to qualify a man for killing a partridge, while they allow forty shillings only to qualify him for electing a knight of the shire.
No. XXV
HARTFORD, OCTOBER, 1789.
On ALLEGIANCE
Writers on law divide allegiance into two kinds, natural and local. "Natural allegiance iz such az iz du from all men born within the kings dominions, immediately upon their berth. For immediately upon their berth, they are under the kings protection; at a time too when (during their infancy) they are incapable of protecting themselves. Natural allegiance iz therefore a det of gratitude, which cannot be forfeited, cancelled or altered, by any change of time, place or circumstances; nor by any thing but the united concurrence of the legislature. An Englishman who remoovs to France or to China, owes the same allegiance to the king of England there az at home, and twenty years hence az wel az now. For it iz a principle of universal law, that the natural born subject of one prince cannot by any act of hiz own, no, not by swearing allegiance to another, put off or discharge hiz natural allegiance to the former; for hiz natural allegiance waz intrinsic and primitiv and antecedent to the other, and cannot be devested, without the concurrent act of that prince to whom it waz first du. Indeed the natural born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it iz hiz own act that brings him into theze straits and difficulties, of owing service to two masters; and it iz unreezonable that, by such voluntary act of hiz own, he should be able at plezure to unloose thoze bands by which he iz connected to hiz natural prince."147
I mistake much, however, if the natural born subject would be so much entangled with hiz straits and difficulties, az lord Coke, Hale and Blackstone, would be, to support their assertions and obviate the absurdities of their reezoning.
It iz astonishing to observe how slowly men get rid of old prejudices and opinions. The feudal ideas of allegiance, which make fidelity in the subject an obligation or grateful return for the protection of the prince, stil prevail, and are made the basis of all modern reezoning on the subject. Such ideas in the dark ages, and in the days of feudal despotism, are not to be wondered at. Every baron waz a tyrant on hiz manor, and az hiz only safety consisted in hiz castle and hiz vassals, it waz necessary to bind hiz subjects to him by oaths and superstition, az wel az by a demand upon their gratitude. But wil our sage writers on government and law, forever think by tradition? Wil they never examin the grounds of receeved opinions? Let me enquire.
What iz the real ground of allegiance? Iz it not protection? Not at all. We may just az wel invert the proposition, and say, that allegiance iz the ground of protection. A prince iz the representativ of a nation or state, so that allegiance to him, iz merely allegiance to a state or body politic.148 According to our ideas, allegiance to a king, and fidelity to a state, are the same thing; for detach a king from all connection with a nation or state, and he becumes a private man, and entitled only to the rights of such. This at leest iz the opinion of an American, whose mind iz not biassed by personal attachments to a sovereign.
What then iz the ground of fidelity to a state? The answer iz eezy; the moral law, which haz for its object the good of society. This iz the basis of all obligations in a state, whether express or implied; yet writers on this subject hav hardly mentioned it. Blackstone indeed takes notice of an implied, original allegiance, antecedent to any express promis; but seems rather to consider it az a return for the duties of the sovereign, which he owes before coronation, than az an obligation arising from the very constitution of society.
Taking the moral law or the good of society for the ground of all allegiance, we discuver two species of duties to be performed by every man; the moral duties, which exist at all times and in all places; and certain political duties, required by the municipal laws of eech state. The first are the basis of natural or perpetual allegiance; the last, of local allegiance. The first or moral duties create an obligation upon every man, the moment he iz born, which cannot be cancelled or discharged by any act of an individual, or by any agreement between prince and subject; the last, or political duties, impoze an obligation upon every member of a state or body politic, the moment he steps within its jurisdiction, to submit peaceably to such positiv injunctions of that state, az hav been judged necessary for its welfare.
Now to maintain that an oath of allegiance wil bind a man to perform all the last class of duties, or the positiv duties enjoined by a particular state, and not required by the general laws of society, when the man haz perhaps become a member of another state, three thousand miles distant, iz to defend the wildest notions that can possess any man's brain. Every man iz bound always and in all places to do right, and avoid doing rong; and this with, or without taking an oath of fidelity to any state. This iz implied allegiance, universal and perpetual; and I deny that there iz any other ground of this allegiance, except the universal principles of right and rong.
Should it be said, that a man may bind himself by oath to perform the positiv or political duties required by a state, altho he may remoov and become a citizen of another state; I answer, this wil involv him in the straits and difficulties mentioned by Blackstone; for the political duties of the two states may interfere with eech other. The truth iz, a man haz no right to take such an oath, nor haz a state any right to require it. He may swear, when he enters into any kingdom or state, that he wil be a good citizen, and submit to all the laws of the state, while he iz a member of it; and further, that he wil observe the moral law in hiz conduct towards that society, after he haz ceesed to be a member of it. Further than this, he haz no right to swear. Az to every duty, not required by the laws of society in general, but only by the municipal laws of a state, a man's allegiance commences when he enters that state; and ceeses the moment he leeves it.149 The doctrin of a perpetual allegiance iz wholly a feudal idea; inculcated, when every lord waz at war with hiz nabor; and waz compelled by self preservation to attach hiz vassals to himself by oaths, the penalties of perjury and the forfeitures of treezon.
Blackstone says, in the passage already quoted, "that natural allegiance iz a det of gratitude," because the subject iz under the kings protection while an infant. He might just az wel say, protection iz a det of gratitude du from the prince, because the subject iz born in hiz dominions. On this principle of gratitude, a child iz obliged to obey and serve hiz parent, after he haz left hiz family, and while he livs. This det, according to the same author, cannot be cancelled, but by "concurrence of the legislature." How in the name of reezon, can an act of the legislature dissolv a natural tie? How can it cancel a det of gratitude? Common sense looks with disdain on such week and futile reezoning. But if there iz such a thing az natural and perpetual allegiance, an Englishman, who remoovs to France, cannot take arms to defend France against an invasion from England. Is this agreeable to the laws of nature and society, that a man should not protect himself and hiz property? It wil be said that the man iz within the English king's liegeance, and entitled to hiz protection. But the king cannot protect him; it iz beyond hiz power, and the Englishman iz not obliged to leev France and seek protection in England. Hiz estate and hiz family may be in France, and if he chooses to reside there, it iz hiz unalienable right and duty to defend both against any invasion whatever. Every war, except a defensiv one, iz a breech of the moral law; but when a natural born subject of England, haz become a citizen of France, he iz subject to the laws of France, and bound to assist, if required, in defending the kingdom against hiz natural prince.
No. XXVI
HARTFORD, JULY, 1789.
EXPLANATION of the REEZONS, why MARRIAGE iz PROHIBITED between NATURAL RELATIONS
Much haz been said and written to ascertain between what relations marriage ought to be permitted. The civil, the canon, and the English laws, differ az to the degrees of consanguinity necessary to render this connection improper. A detail of the arguments on this subject, and even a recapitulation of the decrees of ecclesiastical councils, in the erly ages of the church, would be tedious and uninteresting. I shall only offer a few thoughts of my own on the question, with a view to illustrate a single point, which haz been agitated in modern times, and on which the different American states hav passed different decisions. The point iz, whether a man should be permitted to marry hiz former wife's sister. In some states this iz permitted; in others, prohibited.
Thoze who favor the prohibition, ground their reezon on the Levitical law, which says a man shall not marry hiz wife's sister, during the life of hiz wife, to vex her. This prohibition, while it restrains a man from having two sisters for wives at the same time, among a peeple where poligamy waz permitted, iz a negativ pregnant, and a strong argument that a man waz allowed, after the deth of a wife, to marry her sister.
The Jewish law, however divine, waz designed for a particular nation, and iz no farther binding upon other nations, than it respects the natural and social duties. In no one particular, hav men been more mistaken, than in explaining divine commands. It haz been sufficient for them to reseiv a law into the wil of God, without examining into the reezons for which the law waz revealed. They seem to hav inverted the foundation of moral obligation, in supposing the moral law to derive its propriety and fitness originally from the wil of Deity, rather than from the nature of things. They talk about the fitness and unfitness of things, independent, not only of society, but of God himself. Such wild notions, I presume, are not common. There could be no fitness nor unfitness of things, before things were made; nor could right and rong exist without social beings. The moral duties therefore are not right, merely because they are commanded by God; but they are commanded by him, because they are right. The propriety or fitness of them depends on the very nature of society; and this fitness, which waz coeval with creation, waz the ground of the divine command.150
The law of Moses, regulating marriages, waz founded on this propriety or fitness of things. A divine command givs a sanction to the law; but the propriety of it existed prior to the command. The reezons for prohibiting marriage between certain relations are important; yet they seem not to be understood. It haz been sufficient, in discussing this point, to say, such iz the law of God; and few attempts hav been made to find the reezons of it, by which alone its extent and authority can be ascertained.
There are two rules, furnished by the laws of nature, for regulating matrimonial connections. The first iz, that marriage, which iz a social and civil connection, should not interfere with a natural relation, so az to defeet or destroy its duties and rights. Thus it iz highly improper that an aunt should marry her nephew, or a grandfather hiz grand daughter; because the duties and rights of the natural relation, would be superseded by the positiv duties and rights of the civil connection.
The other rule iz much more important. It iz a law of nature that vegetables should degenerate, if planted continually on the same soil. Hence the change of seeds among farmers. Animals degenerate on the same principle. The physical causes of this law of nature, are perhaps among the arcana of creation; but the effects are obvious; and it iz surprizing that modern writers on law and ethics should pass over almost the only reezons of prohibiting marriage between blood relations. Consanguinity, and not affinity, iz the ground of the prohibition.151
It iz no crime for brothers and sisters to intermarry, except the fatal consequences to society; for were it generally practised, men would soon become a race of pigmies. It iz no crime for brothers and sisters children to intermarry, and this iz often practised; but such near blood connections often produce imperfect children. The common peeple hav hence drawn an argument to proov such connections criminal; considering weakness, sickness and deformity in the offspring az judgements upon the parents. Superstition iz often awake, when reezon iz asleep. It iz just az criminal for a man to marry hiz cousin, az it iz to sow flax every year on the same ground; but when he does this, he must not complain, if he haz an indifferent crop.
Here then the question occurs, iz it proper for a man to marry hiz wife's sister? The answer iz plain. The practice does not interfere with any law of nature or society; and there iz not the smallest impropriety in a man's marrying ten sisters of hiz wife in succession. There iz no natural relation destroyed; there iz no relation by blood; and cessante ratione, cessat et ipsa Lex; the law ceeses when the reezon of it ceeses.
No. XXVII
HARTFORD, FEBRUARY, 1790.
MISCELLANEOUS REMARKS on DIVIZIONS of PROPERTY, GUVERNMENT, EDUCATION, RELIGION, AGRICULTURE, SLAVERY, COMMERCE, CLIMATE and DISEEZES in the UNITED STATES
The laws which respect property, hav, in all civilized communities, formed the most important branch of municipal regulations. Of theze, the laws which direct the division and desent of lands, constitute the first class; for on theze, in a great mezure, depend the genius of guvernment and the complection of manners.
Savages hav very few regulations respecting property; for there are but few things to which their desires or necessities prompt them to lay claim. Some very rude nations seem to hav no ideas of property, especially in lands; but the American tribes, even when first discuvered, claimed the lands on which they lived, and the hunting grounds of eech tribe were marked from thoze of its nabors, by rivers or other natural boundaries. The Mexican and Peruvian Indians had indeed advanced very far towards a state of civilization; and land with them had acquired almost an European valu; but the northern tribes, yet in the hunter state, would often barter millions of akers for a handful of trinkets and a few strings of wampum.
In the progress of nations, land acquires a valu, proportioned to the degree of populousness; and other objects grow into estimation, by their utility, convenience, or some plezure they afford to the imagination.
In attending to the principles of guvernment, the leeding idea that strikes the mind, iz, that political power depends mostly on property; consequently guvernment will take its complection from the divisions of property in the state.
In despotic states, the subjects must not possess property in fee; for an exclusiv possession of lands inspires ideas of independence, fatal to despotism. To support such guvernments, it iz necessary that the laws should giv the prince a sovereign control over the property az wel az the lives of hiz subjects. There are however very few countries, where the guvernment iz so purely arbitrary, that the peeple can be deprived of life and estate, without some legal formalities. Even when the first possession waz the voluntary gift of the prince, grants or concessions, sanctioned by prescription, hav often established rights in the subject, of which he cannot be deprived without a judicial process.
In Europe the feudal system of tenures haz given rise to a singular species of guvernment. Most of the countries are said to be guverned by monarkies; but many of the guvernments might, with propriety, be called aristocratic republics. The barons, who possess, the lands, hav most of the power in their own hands. Formerly the kings were but lords of a superior rank, primi inter pares; and they were originally electiv. This iz stil the case in Poland, which continues to be what other states in Europe were, an aristocratic republic. But from the twelfth to the sixteenth century, the princes, in many countries, were struggling to circumscribe the power of the barons, and their attempts, which often desolated their dominions, were attended with various success. What they could not accomplish by force, they sometimes obtained by stratagem. In some countries the commons were called in to support the royal prerogativs, and thus obtained a share in legislation, which haz since been augmented by vast accessions of power and influence, from a distribution and encreese of welth. This haz been the case in England. In other countries, the prince haz combined with the barons to depress the peeple. Where the prince holds the privilege of disposing of civil, military and ecclesiastical offices, it haz been eezy to attach the nobility to hiz interest, and by this coalition, peece haz often been secured in a kingdom; but the peeple hav been kept in vassalage. Thus by the laws of the feudal system, most of the commons in Europe are kept in a state of dependence on the great landholders.
But commerce haz been favorable to mankind. Az the rules of succession to estates, every where established in Europe, are calculated to aggrandize the few at the expense of the many, commerce, by creating and accumulating personal estate, haz introduced a new species of power to ballance the influence of the landed property. Commerce found its way from Italy and the eest, to Germany and England, diffusing in its progress freedom, knowlege and independence. Commerce iz favorable to freedom; it flurishes most in republics; indeed a free intercourse by trade iz almost fatal to despotism; for which reezon, some princes lay it under severe restrictions: In other countries it iz discuraged by public opinion, which renders trade disreputable. This iz more fatal to it, than the edicts of tyrants.
The basis of a democratic and a republican form of government, iz, a fundamental law, favoring an equal or rather a general distribution of property. It iz not necessary nor possible that every citizen should hav exactly an equal portion of land and goods, but the laws of such a state should require an equal distribution of intestate estates, and bar all perpetuities. Such laws occasion constant revolutions of property, and thus hold out to all men equal motivs to vigilance and industry. They excite emulation, by giving every citizen an equal chance of being rich and respectable.
In no one particular do the American states differ from European nations more widely, than in the rules which regulate the tenure and distribution of lands. This circumstance alone wil, for ages at leest, prezerve a government in the united states, very different from any which now exists or can arize in Europe.
In New England, intestate estates desend to all the children or other heirs in equal portions, except to the oldest son, who haz two shares. This exception in favor of the oldest son, waz copied from the levitical code, which waz made the basis of the first New England institutions. The legislature of Massachusetts, at their May session, 1789, abolished that absurd exception; and nothing but inveterate habit keeps it alive in the other states.152
In consequence of theze laws, the peeple of New England enjoy an equality of condition, unknown in any other part of the world. To the same cause may be ascribed the rapid population of theze states; for estates by division are kept small, by which meens every man iz obliged to labor, and labor iz the direct cause of population. For the same reezon, the peeple of theze states, feel and exert the pride of independence. Their equality makes them mild and condesending, capable of being convinced and guverned by persuasion; but their independence renders them irritable and obstinate in resisting force and oppression. A man by associating familiarly with them, may eezily coax them into hiz views, but if he assumes any airs of superiority, he iz treeted with az little respect az a servant. The principal inconvenience arizing from theze dispositions iz, that a man who happens to be a little distinguished for hiz property or superior education iz ever exposed to their envy, and the tung of slander iz bizzy in backbiting him. In this manner, they oppoze distinctions of rank, with great success. This however iz a private inconvenience; but there iz an evil, arising from this jealousy, which deeply affects their guvernment. Averse to distinctions, and reddy to humble superiority, they become the dupes of a set of artful men, who, with small talents for business and no regard for the public interest, are always familiar with every class of peeple, slyly hinting something to the disadvantage of great and honest men, and pretending to be frends to the public welfare. The peeple are thus guverned at times by the most unqualified men among them. If a man wil shake hands with every one he meets, attend church constantly, and assume a goodly countenance; if he wil not swear or play cards, he may arrive to the first offices in the guvernment, without one single talent for the proper discharge of hiz duty; he may even defraud the public revenu and be accused of it on the most indubitable evidence, yet by laying hiz hand on hiz brest, casting hiz eyes to heaven, and calling God to witness hiz innocence, he may wipe away the popular suspicions, and be a fairer candidate for preferment than before hiz accusation. So far az the harts of the peeple are concerned, the disposition here mentioned iz a high recommendation, for it proves them mild, unsuspecting and humane: But guvernment suffers a material injury from this turn of mind; and were it not for a few men who are boldly honest, and indefatigable in detecting impositions on the public, the guvernment of theze states would always be, az it often iz, in the hands of the weekest, or wickedest of the citizens.
The same equality of condition haz produced a singular manner of speeking among the peeple of New England.153 But the inhabitants of all the large towns, wel bred citizens, are excepted from this remark.
Altho the principle iz tru that a general distribution of lands iz the basis of a republican form of guvernment, yet there iz an evil arising out of this distribution, which the New England states now feel, and which wil increase with the population of the country. The tracts of land first taken up by the settlers, were not very considerable; and theze having been repeetedly divided among a number of heirs, hav left the present proprietors almost without subsistence for their families. Vast numbers of men do not possess more than thirty or forty akers eech, and many not half the quantity. It iz with difficulty that such men can support families and pay taxes. Indeed most of them are unable to do it; they involve themselves in det; the creditors take the little land they possess, and the peeple are driven, poor and helpless, into an uncultivated wilderness. Such are the effects of an equal division of lands among heirs; and such the causes of emigration to the western territories. Emigration indeed iz a present remedy for the evil; but when settlements hav raized the valu of the western lands neerly to that on the Atlantic coast, emigrations wil mostly ceese. They wil not entirely ceese, until the continent iz peepled to the Pacific ocean; and that period iz distant; but whenever they ceese, our republican inhabitants, unable to subsist on the small portions of land, assigned them by the laws of division, must hav recourse to manufactures. The holders of land wil be fewer in number, because monied men wil hav the advantage of purchasing lands very low of the necessitous inhabitants, who wil be multiplied by the very laws of the state, respecting landed property. Other laws however could not be tolerated in theze states. In Europe, provision iz made for younger sons, in the army, the church, the navy, or in the numerous manufactures of the countries. But in America, such provision cannot be made; and therefore our laws eezely provide for all the children, where they are not provided for by the parents.
By extending our views to futurity, we see considerable changes in the condition of theze republican states. The laws, by barring entailments, prevent the establishment of families in permanent affluence; we are therefore in little danger of a hereditary aristocracy. But the same laws, by dividing inheritances, tho their first effect iz to create equality, ultimately tend to impoverish a great number of citizens, and thus giv a few men, who commanded money, an advantage in procuring lands at less than their real valu. The evil iz increased in a state, where there iz a scarcity of cash, occasioned by the course of trade, or by laws limiting the interest on money loaned. Such iz the case in Connecticut. A man who haz money may purchase wel cultivated farms in that state for seventy, and sometimes for fifty per cent. of the real valu. Such a situation iz favorable to the accumulation of great estates, and the creation of distinctions; but while alienations of real estates are rendered necessary by the laws, the genius of the guvernment wil not be materially changed.
The causes which destroyed the ancient republics were numerous; but in Rome, one principal cause waz, the vast inequality of fortunes, occasioned partly by the stratagems of the patricians and partly by the spoils of their enemies, or the exactions of tribute in their conquered provinces. Rome, with the name of a republic, waz several ages loozing the spirit and principle. The Gracchi endevored to check the growing evil by an agrarian law; but were not successful. In Cesar's time, the Romans were ripened for a change of guvernment; the spirit of a commonwelth waz lost, and Cesar waz but an instrument of altering the form, when it could no longer exist. Cesar iz execrated az the tyrant of hiz country; and Brutus, who stabbed him, iz applauded az a Roman. But such waz the state of things in Rome, that Cesar waz a better ruler than Brutus would hav been; for when the spirit of a guvernment iz lost, the form must change.
Brutus would hav been a tyrannical demagogue, or hiz zeel to restore the commonwelth would hav protracted the civil war and factions which raged in Rome and which finally must hav subsided in monarky. Cesar waz absolute, but hiz guvernment waz moderate, and hiz name waz sufficient to repress faction and prezerve tranquillity. The zeel of Brutus waz intemperate and rash; for when abuses hav acquired a certain degree of strength; when they are interwoven with every part of government, it iz prudence to suffer many evils, rather than risk the application of a violent remedy.
